Copyright Act 1994
Public Act 1994 No 143 Date of assent 15 December 1994 Commencement see section 1(2)
This Act is administered by the Ministry of Economic Development.
Part 1 Description, ownership, and duration of copyright
Description of copyright
14 Copyright in original works 31 15 Recording necessary for some works 32 16 Acts restricted by copyright 32
Qualification for copyright
17 Qualification for copyright 32 18 Qualification by reference to author 33 19 Qualification by reference to country of first publication 34 20 Qualification by reference to origin of communication 34 work
Ownership of copyright
21 First ownership of copyright 34
Duration of copyright
22 Duration of copyright in literary, dramatic, musical, or 35 artistic works 23 Duration of copyright in sound recordings and films 36 24 Duration of copyright in communication works 37 25 Duration of copyright in typographical arrangement of 37 published editions
Crown copyright
26 Crown copyright 37 27 No copyright in certain works 38 28 Copyright vesting in certain international organisations 39
Part 2 Infringement of copyright
Primary infringement of copyright
29 Infringement of copyright 40 30 Infringement by copying 41 31 Infringement by issue of copies to public 41 32 Infringement by performance or playing or showing in 41 public 33 Infringement by communicating to public 42 34 Infringement by making adaptation or act done in relation 42 to adaptation
Secondary infringement of copyright
35 Infringement by importation 42
2
36 Possessing or dealing with infringing copy 44 37 Providing means for making infringing copies 44 38 Permitting use of premises for infringing performance 45 39 Provision of apparatus for infringing performance, etc 45
Part 3 Acts permitted in relation to copyright works
40 Provisions to be construed independently 46 41 Incidental copying of copyright work 46 42 Criticism, review, and news reporting 47 43 Research or private study 47 43A Transient reproduction of work 48
Education
44 Copying for educational purposes of literary, dramatic, 49 musical or artistic works or typographical arrangements 44A Storing copies for educational purposes 51 45 Copying for educational purposes of films and sound 52 recordings 46 Anthologies for educational use 53 47 Performing, playing, or showing work in course of 54 activities of educational establishment 48 Copying and communication of communication work for 54 educational purposes 49 Things done for purposes of examination 56
Libraries and archives
50 Interpretation 56 51 Copying by librarians of parts of published works 57 52 Copying by librarians of articles in periodicals 58 53 Copying by librarians for users of other libraries 59 54 Copying by librarians for collections of other libraries 60 55 Copying by librarians or archivists to replace copies of 61 works 56 Copying by librarians or archivists of certain unpublished 62 works 56A Library or archive may communicate digital copy to 63 authenticated users 56B Additionalconditionsforsupplyofcopyofworkindigital 64 formatbylibrarianorarchivistundersection51,52,or56 56C Additional condition for making digital copies under 64 section 53 or 54 57 Playing or showing sound recordings or films 64
Public administration
58 Copying by Parliamentary Library for members of 65 Parliament 59 Parliamentary and judicial proceedings 66 60 Royal commissions and statutory inquiries 66 61 Materialopentopublicinspectionoronofficialregister 66 62 Material communicated to the Crown in course of public 68 business 63 Use of copyright material for services of the Crown 68 64 Rights of third parties in respect of Crown use 69 65 Proceedings against the Crown 70 66 Acts done under statutory authority 70
Literary, dramatic, musical, or artistic works
67 Actspermittedonassumptionsastoexpiryofcopyrightor 70 deathofauthorinrelationtoanonymousorpseudonymous works 68 Use of recording of spoken words in certain cases 71 69 ProvisionofBraillecopiesofliteraryordramaticworks 72 70 Public reading or recitation 73 71 Abstracts of scientific or technical articles 73 72 Recordings of folk songs 74 73 Representation of certain artistic works on public display 74 74 Special exception from protection of literary or artistic 75 works 75 Special exception from protection of artistic work that 76 has been applied industrially 76 Special exception from protection of literary and artistic 77 works relating to medicines 77 Making of subsequent works by same artist 77 78 Reconstruction of buildings 78
Computer programs, sound recordings, and films
79 Rental by educational establishments and libraries 78 80 Back-up copy of computer program 78 80A Decompilation of computer program 79 80B Copying or adapting computer program if necessary for 80 lawful use 80C Observing, studying, or testing of computer program 81 80D Certain contractual terms relating to use of computer 81 programs have no effect 81 Playing of sound recordings for purposes of club, society, 81 etc
Right to object to derogatory treatment of work
98 Right to object to derogatory treatment of work 102 99 Content of right to object to derogatory treatment 103 100 Exceptions to right to object to derogatory treatment of 105 literary, dramatic, musical, or artistic work 101 Exceptions to right to object to derogatory treatment of 107 films
False attribution
102 False attribution of identity of author or director 108 103 False representation as to literary, dramatic, or musical 110 work 104 False representations as to artistic work 111
Right to privacy of certain photographs and films
105 Right to privacy of certain photographs and films 112
Supplementary provisions
106 Duration of rights 113 107 Consent and waiver of rights 114 108 Application of provisions to joint works other than films 114 109 Application of provisions to joint works that are films 115 110 Application of provisions to parts of works 116
Part 5 Dealing with rights in copyright works
Licences to deal with copyright works
111 Licences 117 112 Warranty implied in certain licences 117 112A Damages for falsely claiming copyright ownership or 118 licence 112B Provisions of sections 112 and 112A to have effect no 118 matter what licence says
Transmission of copyright
113 Transmission of copyright 118 114 Assignment 119 115 Copyright to pass under will with unpublished works 119 116 Future copyright 119 117 Righttomakeconditionsinrespectofcertainunpublished 120 works
Moral rights
118 Moral rights not assignable 121
6
119 Transmission of moral rights on death 121
Part 6 Remedies for infringement
Rights and remedies of copyright owner
120 Infringement actionable by copyright owner 122 121 Provisions as to damages in infringement proceedings 122 122 Order for delivery up in civil proceedings 123
Rights and remedies of exclusive licensee
123 Rights and remedies of exclusive licensee 124 124 Exercise of concurrent rights 124
Rights and remedies in relation to moral rights
125 Infringement of moral rights actionable 125
Presumptions
126 Presumptions relevant to literary, dramatic, musical, or 126 artistic works 127 Presumptions relevant to certain artistic works 127 128 Presumptions relevant to computer programs, sound 128 recordings, and films 129 Presumptions relevant to works subject to Crown 129 copyright 130 Unjustified proceedings 129
Offences
131 Criminal liability for making or dealing with infringing 130 objects 131A Time for laying information 132 132 Order for delivery up in criminal proceedings 132 133 Liability of officers of body corporate 133 133A Evidence in proceedings 134
Disposal of infringing copy or other object
134 Order as to disposal of infringing copy or other object 134
Part 7 Border protection measures
135 Definitions 135 136 Notice may be given to chief executive 136 137 Determination whether item is pirated copy 138 138 Limitations on requirement to supply information 138 139 Notice of determination 139 140 Detention of pirated copy 140
7
141 Proceedings 141 141A Forfeiture of goods by consent 142 142 Powers of court 142 143 Inspection of item 143 144 Notice of parallel import may be given to chief 143 executive[Repealed] 145 Delegation of powers, duties, and functions 143 146 Protection of persons acting under authority of Act 144
Part 8 Copyright licensing
147 Works of more than 1 author 145
References and applications with respect to licensing schemes
148 Licensing schemes to which sections 149 to 155 apply 145
References with respect to licensing schemes
149 Reference of proposed licensing scheme to Tribunal 146 150 Reference of licensing scheme to Tribunal 147 151 Further reference of scheme to Tribunal 147 152 Effect of order of Tribunal made on reference 148
Applications with respect to licensing schemes
153 Application for grant of licence in connection with 149 licensing scheme 154 Applicationforreviewoforderastoentitlementtolicence 150 155 Effect of order of Tribunal made on application 151
References and applications with respect to licensing by licensing bodies
156 Licences to which sections 157 to 160 apply 151 157 Reference to Tribunal of proposed licence 152 158 Reference to Tribunal of expiring licence 152 159 Application for review of order as to licence 153 160 Effect of order of Tribunal as to licence 154
Factors to be taken into account in certain classes of cases
161 Unreasonable discrimination 155 162 Licences for reprographic copying 155 163 Licences for educational establishments in respect of 155 works included in communication works 164 Licences to reflect conditions imposed by promoters of 156 events
165 Licences to reflect payments in respect of underlying 156 rights 166 Licencesinrespectofworksincludedinretransmissions 157
Implied indemnity in schemes or licences for reprographic copying
167 Implied indemnity in certain schemes and licences for 158 reprographic copying 168 Determination of equitable remuneration 159
Part 9 Performers’ rights
169 Interpretation 160 170 Application 163
Performers’ rights
171 Consent required for recording or live transmission of 164 performance 172 Infringement by use of recording made without 164 performer’s consent 173 Copying of recordings 165 174 Infringement by importing, possessing, or dealing with 165 illicit recording
Acts permitted in relation to performances
175 Incidental copying of performance or recording 166 175A Transient reproduction of recording of performance 167 176 Permitted acts in relation to performances, criticism, 167 reviews, and news reporting 177 Things done for purposes of instruction or examination 167 178 Playing or showing sound recording, film, or 168 communication work at educational establishment 179 Recording of communication works by educational 168 establishment 180 Subsequent dealings 169 181 Parliamentary and judicial proceedings 169 182 Royal commissions and statutory inquiries 169 183 Acts done under statutory authority 170 184 Use of recordings of spoken works in certain cases 170 185 Recordings of folk songs 171 186 Playing of sound recordings for purposes of club, society, 171 etc 187 Incidentalrecordingforpurposesofcommunicationwork 172
188 Free public playing or showing of broadcast or cable 172 programme 189 Reception and retransmission of broadcast in cable 175 programme service[Repealed] 190 Provision of subtitled copies of communication work 175 191 Recording of communication work for archival purposes 175 192 PowerofTribunaltogiveconsentonbehalfofperformer 175
Duration and transmission of rights
193 Duration of rights 177 194 Transmission of rights 177
Consent
195 Consent 177
Remedies for infringement
196 Proceedings for infringement of performers’ rights 178 197 Order for delivery up in civil proceedings 178
Offences
198 Criminal liability for making, dealing with, using, or 179 copying illicit recordings 199 Order for delivery up in criminal proceedings 181 200 False representation of authority to give consent 181 201 Liability of officers of body corporate 182 202 Order as to disposal of illicit recording 182
Application to foreign countries 203 ApplicationofthisParttoconventioncountries[Repealed] 183 204 Application of Part 9 to other entities 183
Part 10 Copyright Tribunal
Constitution
205 Copyright Tribunal 184 206 Membership of Tribunal 184 207 Term of office of members of Tribunal 185 208 Vacation of office 185 209 Deputies of members 186 210 Remuneration and travelling allowances 186
Jurisdiction and procedure
211 Jurisdiction of Tribunal 186 212 Parties to proceedings 187 213 Sittings of Tribunal 187
10
214 Procedure of Tribunal 188 215 Evidence in proceedings before Tribunal 188 216 Witness summons 189 217 Service of summons 189 218 Witnesses’ allowances 190 219 Privileges and immunities 190 220 Non-attendance or refusal to co-operate 191 221 Contempt of Tribunal 191 222 Costs 192 223 Stating case for High Court 192 224 Appeal on question of law 193
Part 11 Miscellaneous provisions
225 Rights and privileges under other enactments or common 193 law
Technological protection measures
226 Definitions of TPM terms 194 226A Prohibited conduct in relation to technological protection 194
measure 226B Rights of issuer of TPM work 195 226C Offence of contravening section 226A 195 226D When rights of issuer of TPM work do not apply 196 226E User’s options if prevented from exercising permitted act 197
by TPM
Copyright management information
226F Meaning of copyright management information 198 226G Interference with CMI prohibited 199 226H CommercialdealinginworksubjecttoCMIinterference 199 226I Contravention of section 226G or 226H 200 226J Offence of dealing in work subject to CMI interference 200 227 Offence of fraudulently receiving programmes 200 228 Rights and remedies in respect of apparatus, etc, for 201
unauthorised reception of transmissions
Other countries
229 Supplementary provisions as to fraudulent reception 202 230 Application to convention countries 202 231 Expenditure or liability incurred in connection with 204
copyright work 232 Application of Act (other than Part 9) to other entities 204
233 Denial of copyright to persons connected with countries 206 not giving adequate protection to New Zealand works
234 Regulations 207
Transitional provisions and savings
235 Transitional provisions and savings 209 236 Consequential amendments and repeals 209
Schedule 1 210 Transitional provisions and savings
Schedule 2 233 Enactments amended
Schedule 3 234 Enactments repealed
Schedule 4 235 Regulations revoked
An Act to consolidate and amend the law relating to copyright
1 Short Title and commencement
- (1)
- This Act may be cited as the Copyright Act 1994.
- (2)
- Exceptasprovidedin sections27(2) and 144(5) ,thisActshall come into force on 1 January 1995.
2 Interpretation
(1) In this Act, unless the context otherwise requires,— adaptation,—
(a) in relation to a literary or dramatic work, includes—
- (i)
- a translation of the work from one language to another:
- (ii)
- a version of a dramatic work in which it is convertedintoaliteraryworkor,asthecasemaybe, of a literary work in which it is converted into a dramatic work:
(iii) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine, or similar periodical:
- (b)
- inrelationtoaliteraryworkthatisacomputerprogram, includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code, otherwise than incidentallyin the course of runningthe program:
- (c)
- inrelationtoamusicalwork,meansanarrangementor
transcription of the work Archives New Zealand has thesame meaningasin section 4 of the Public Records Act 2005
article,inrelationtoanarticleinaperiodical,includesanitem of any description artistic work—
- (a)
- means—
- (i)
- a graphic work, photograph, sculpture, collage, or model, irrespective of artistic quality; or
- (ii)
- a work of architecture, being a building or a model for a building; or
(iii) a work of artistic craftsmanship, not falling withinsubparagraph (i) or subparagraph (ii); but
- (b)
- doesnotincludealayoutdesignoranintegratedcircuit within the meaning of section 2 of the Layout Designs Act 1994
authorised, with respect to anything done in relation to a work, means done—
- (a)
- by or with the licence of the copyright owner; or
- (b)
- pursuant to section 62 building includes—
- (a)
- any fixed structure; and
- (b)
- a part of a building or fixed structure business includes a trade or profession CMI or copyright management information has the mean
ing given to it in section 226F collective work means—
- (a)
- a work of joint authorship; or
- (b)
- a work in which there are distinct contributions by different authors or in which works, or parts of works, of different authors are incorporated
communicate means to transmit or make available by means of a communication technology, including by means of a telecommunications system or electronic retrieval system, and communication has a corresponding meaning
communicationworkmeansatransmissionofsounds,visual images,orotherinformation,oracombinationofanyofthose, forreceptionbymembers ofthepublic,andincludesabroadcast or a cable programme
compilation includes—
- (a)
- a compilation consisting wholly of works or parts of works; and
- (b)
- a compilation consisting partly of works or parts of works; and
- (c)
- acompilationofdataotherthanworksorpartsofworks computer-generated, in relation to a work, means that the
work is generated by computer in circumstances such that there is no human author of the work convention country , except in Part 9, means an entity that is
a party to an international agreement or arrangement relating to copyright copying—
(a) means, in relation to any description of work, reproducing,recording,orstoringtheworkinanymaterialform (including any digital format), in any medium and by any means; and
(b) [Repealed]
- (c)
- includes, in relation to an artistic work, the making of a copy in 3 dimensions of a two-dimensional work and themakingofacopyin2dimensionsofathree-dimensional work; and
- (d)
- includes, in relation to a film or communication work, the making of a photograph of the whole or any substantial part of any image forming part of the film or communication work—
and copy and copies have corresponding meanings copyrightlicencemeansalicencetodo,orauthorisethedoing
of, any restricted act copyright work means a work of any of the descriptions in section 14(1) in which copyright exists
country includes every territory for whose international relations the Government of that country is responsible Crown—
- (a)
- meansHerMajestytheQueeninrightofNewZealand; and
- (b)
- includesaMinisteroftheCrown,agovernmentdepartment, and an Office of Parliament; but
- (c)
- does not include—
- (i)
- a Crown entity; or
- (ii)
- a State enterprise named in Schedule 1 of the
State-Owned Enterprises Act 1986 Crown entity has the same meaning as it has in section 2(1) of the Public Finance Act 1989
director,inrelationtoacopyrightworkthatisafilm,includes anypersonnominatedbythedirectorofthefilmtoexercisethe director’s rights under Part 4 if—
- (a)
- thenominationisinwritingandsignedbythedirector; and
- (b)
- the nomination is made before the completion of the making of the film; and
- (c)
- the person nominated makes a creative contribution to
the making of the film dramatic work includes—
- (a)
- a work of dance or mime; and
- (b)
- a scenario or script for a film educational establishment means—
- (a)
- any school to which the Education Act 1989 or the Private Schools Conditional Integration Act 1975 ap plies:
- (b)
- any—
- (i)
- special school; or
- (ii)
- special class; or
(iii) special clinic; or
(iv) special service— established under section 98(1) of the Education Act 1964:
- (c)
- any special institution within the meaning of section 92(1) of the Education Act 1989:
- (d)
- any early childhood service within the meaning of sec tion 309 of the Education Act 1989:
- (e)
- any—
- (i)
- institution; or
- (ii)
- private training establishment; or
(iii) government training establishment— within the meaning of section 159(1) of the Education Act 1989, that is not conducted for profit:
- (f)
- any body, or class of body, that is not conducted for profitandthatisapprovedbytheMinisterofEducation asaneducationalestablishmentforthepurposesofthis Act by a notice published in the Gazette
educational resource supplier means any person—
- (a)
- whoseprincipalfunctionisthecopyingofcommunicationworksandthesupplyofthecopiesitmakestoeducational establishments for educational purposes; and
- (b)
- who does not conduct its business for profit; and
- (c)
- who has been approved by the Minister of Education as an educational resource supplier for the purpose of thisActbyanoticepublishedinthe Gazette andwhose approval has not been revoked
electronic meansactuatedbyelectric,magnetic,electro-magnetic, electro-chemical, or electro-mechanical energy; and in electronic form means in a form usable only by electronic means
employed means employed under a contract of service or a contractofapprenticeship;andemployee,employer,andemployment have corresponding meanings
exclusive licence means a licence in writing, signed by or on behalf of a copyright owner, authorising the licensee, to the exclusionofallotherpersons(includingthecopyrightowner), to exercise a right that would otherwise be exercisable exclusively by the copyright owner
facsimile copy includes a copy that is reduced or enlarged in scale
film means a recording on any mediumfrom which a moving
image may by any means be produced futurecopyright meanscopyrightthatwillormaycomeinto existence in respect of a future work or a class of future work or on the occurrence of a future event
Government means the Executive Government of New
Zealand government department means any department or instrumentoftheGovernment,oranybranchordivisionofanysuch department or instrument; but does not include—
- (a)
- abodycorporateorotherlegalentitythathasthepower to contract:
- (b)
- an Office of Parliament:
- (c)
- Public Trust:
- (d)
- the Export Guarantee Office graphic work includes—
- (a)
- anypainting,drawing,diagram,map,chart,orplan;and
- (b)
- any engraving, etching, lithograph, woodcut, print, or similar work
infringing copy has the meaning given by section 12 instruction means—
- (a)
- giving a lesson, either in person or by correspondence, to a student or a group of students, at an educational establishment or elsewhere; or
- (b)
- receiving a lesson, either in person or by correspondence and either alone or in a group of students, at an educational establishment or elsewhere
international organisation means an organisation the mem
bers of which include 1 or more States Internetserviceprovider meansapersonwhodoeseitheror both of the following things:
- (a)
- offers the transmission, routing, or providing of connectionsfordigitalonlinecommunications,betweenor among points specified by a user, of material of the user’s choosing:
- (b)
- hosts material on websites or other electronic retrieval systems that can be accessed by a user
judicial proceedings includes—
- (a)
- proceedingsbeforeanycourt,tribunal,orpersonhaving authoritytodecideanymatteraffectingaperson’slegal rights or liabilities; and
- (b)
- proceedingsbeforeanyotherbodythatisprescribedby regulations made under this Act as a judicial body for the purposes of this Act
lawfuluser,inrelationtoacomputerprogram,meansaperson whohasarighttousetheprogram,whetherunderacopyright licence or otherwise
licensingbodymeansabodyofpersons(whethercorporateor unincorporate) that, as copyright owner or prospective copyright owner or as agent for a copyright owner,—
- (a)
- negotiates copyright licences; and
- (b)
- grants copyright licences, including licences that cover
the works of more than 1 author licensing scheme means a scheme setting out—
- (a)
- theclassesofcasesinwhichtheoperatorofthescheme, orthepersononwhosebehalftheoperatoracts,iswilling to grant copyright licences; and
- (b)
- thetermsonwhichcopyrightlicenceswouldbegranted
in those classes of cases;— and for the purpose of this definition a scheme includes anythinginthenatureofascheme,whetherdescribedasascheme or as a tariff or by any other name
literary work means any work, other than a dramatic or musical work, that is written, spoken, or sung; and includes—
- (a)
- a table or compilation; and
- (b)
- a computer program material time,—
- (a)
- in relation to a literary, dramatic, musical, or artistic work, means,—
- (i)
- in the case of an unpublished work, when the work is made or, if the making of the work extends over a period, a substantial part of that period; and
- (ii)
- in the case of a published work, when the work is first published or,ifthe authorhasdiedbefore
that time, immediately before his or her death; and
- (b)
- inrelationtoasoundrecordingorfilm,meanswhenthe workismadeor,ifthemakingoftheworkextendsover a period, a substantial part of that period; and
- (c)
- in relation to a communication work, means when the work is made or received in New Zealand; and
- (d)
- in relation to a typographical arrangement of a publishededition,meanswhentheeditionisfirstpublished
- (e)
- [Repealed] Minister meanstheMinisteroftheCrownwho,undertheauthority of anywarrantorwith the authorityofthe PrimeMin
ister,isforthetimebeingresponsiblefortheadministrationof this Act Ministerial inquiry includes the proceedings of a committee
setupbytheGovernmentoraMinisterorMinisterstoinquire
into or advise on any matter musicalworkmeansaworkconsistingofmusic,exclusiveof anywordsintendedtobesungorspokenwiththemusicorany actions intended to be performed with the music
New Zealand includes Tokelau Office of Parliament means—
- (a)
- the Parliamentary Commissioner for the Environment (and that Commissioner’s office):
- (b)
- the Office of Ombudsmen:
- (c)
- the Auditor-General:
- (d)
- the Parliamentary Counsel Office performance , except in Part 9,—
- (a)
- in the case of a literary work that is a lecture, address, speech, or sermon,includes deliveryof that work; and
- (b)
- ingeneral,includesanymodeofvisualoracousticpresentationofaliterary,dramatic,musical,orartisticwork, includingpresentationoftheworkbymeansofasound recording, film, or communication work
photograph means a recording of light or other radiation on anymediumonwhichanimageisproducedorfromwhichan imagemaybyany meansbe produced; butdoes notinclude a film or part of a film plate includes any stereotype, stone, block, mould, matrix,
transfer, negative, or other similar appliance prescribed foreign country means any country (other than New Zealand)—
- (a)
- to which section 230 applies; or
- (b)
- thatisdeclaredbyOrderinCouncilmadeunder section 232 to be a foreign country to which any provision of this Act applies; and, with respect to the application of any provision of this Act to such a country, the provision shall be read subject to the terms of that Order in Council
proceedings includes a counterclaim; and references to the plaintiffandtothedefendantinproceedingsshallbeconstrued accordingly
published edition means a published edition of the whole or any part of 1 or more literary, dramatic, or musical works regulations—
- (a)
- has the same meaning as it has in section 2 of the Acts and Regulations Publication Act 1989; and
- (b)
- includes any instruments that have, pursuant to section 6AoftheRegulationsAct1936or section14 oftheActs and Regulations Publication Act 1989, been printed or published as if they were regulations
rental means any arrangement under which a copy of a work is made available—
- (a)
- for payment (in money or money’s worth); or
- (b)
- inthecourseofabusiness,aspartofservicesoramenities for which payment is made,—
on terms that it will or may be returned reprographic copy means a copy made by a reprographic process; and reprographic copying has a corresponding meaning
reprographic process means a process—
- (a)
- for making facsimile copies; or
- (b)
- involving the use of an appliance for making multiple copies;—
andincludes,inrelationtoaworkheldinelectronicform,any copyingbyelectronicmeans;butdoesnotincludethemaking of a film or sound recording
restricted act means any of the acts described in section 16
sculptureincludesacastormodelmadeforpurposesofsculpture sound recording means—
- (a)
- a recording of sounds, from which the sounds may be reproduced; or
- (b)
- a recording of the whole or any part of a literary, dramatic,ormusicalwork,fromwhichsoundsreproducing the work or part may be produced,—
regardless of the medium on which the recording is made or
the method by which the sounds are reproduced or produced statutoryinquirymeansaninquiryheldorinvestigationconducted in pursuance of a duty imposed or powerconferred by or under an enactment
sufficientacknowledgement,inrelationtoawork,meansan acknowledgement identifying—
- (a)
- the work by its title or other description; and
- (b)
- the author of the work, unless,—
- (i)
- in the case of a published work, it is published anonymously:
- (ii)
- inthecaseofanunpublishedwork,itisnotpossiblebyreasonableinquirytoascertain theidentity of the author
telecommunications system means a system for conveying visual images, sounds, or other information by electronic means
TPM or technological protection measure has the meaning
given to it in section 226 TPM circumvention device has the meaning given to it in section 226
TPM work has the meaning given to it in section 226
transcript means a written record of words spoken on a recording Tribunal means the Copyright Tribunal continued by section
205 unauthorised, with respect to anything done in relation to a work, means done otherwise than—
- (a)
- by or with the licence of the copyright owner; or
- (b)
- pursuant to section 62 wireless communication means the sending of electromag
netic energy over paths not provided by a material substance constructed or arranged for that purpose working day means any day of the week other than—
- (a)
- Saturday,Sunday,GoodFriday,EasterMonday,Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and
- (b)
- a day in the period commencing with 25 December in any year and ending with 15 January in the following year
writing includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded; and written has a corresponding meaning.
(2) ReferencesinthisActtothetimeatwhichaliterary,dramatic, or musical work is made are to the time at which the work is recorded, in writing or otherwise. Compare: 1962No33ss2(1),3(6),3(8),17(1),24(5),26(9),36(1);1989No44
s 2; Copyright, Designs and Patents Act 1988 ss 1(2), 3(1), 3(2), 4, 5(1), 6(1), 8(1), 16(1), 19(2), 21(3), 21(4), 92(1), 178 (UK)
Section 2(1) Archives New Zealand : inserted, on 21 April 2005, by section 67(1) of the Public Records Act 2005 (2005 No 40).
Section 2(1) broadcast : repealed, on 31 October 2008, by section 4(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 2(1) CMI or copyright management information: inserted, on 31 October 2008, by section 4(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 2(1) communicate : inserted, on 31 October 2008, by section 4(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 2(1) communication work : inserted, on 31 October 2008, by section 4(2) oftheCopyright(NewTechnologies)AmendmentAct2008(2008No27).
Section2(1) convention country : substituted, on 14 October 1999, by section 3(2) of the Copyright Amendment Act 1999 (1999 No 124).
Section2(1)copying paragraph(a): substituted,on31October2008,bysection 4(3) oftheCopyright(NewTechnologies)AmendmentAct2008(2008No27).
Section 2(1) copying paragraph (b): repealed, on 31 October 2008, by section 4(3) oftheCopyright(NewTechnologies)AmendmentAct2008(2008No27).
Section2(1)copying paragraph(d): substituted,on31October2008,bysection 4(4) oftheCopyright(NewTechnologies)AmendmentAct2008(2008No27).
Section 2(1) educational establishment paragraph (d): substituted, on 1 December 2008, by section 60(1) of the Education Amendment Act 2006 (2006 No 19).
Section2(1) educationalresource supplier: inserted,on31October2008,by section4(2) oftheCopyright(NewTechnologies)AmendmentAct2008(2008 No 27).
Section 2(1) government department paragraph (c): substituted, on 1 March 2002, by section 170(1) of the Public Trust Act 2001 (2001 No 100).
Section 2(1) infringing copy : inserted, on 19 May 1998, by section 3 of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).
Section 2(1) Internet service provider: inserted, on 31 October 2008, by section4(2) oftheCopyright(NewTechnologies)AmendmentAct2008(2008 No 27).
Section2(1) material time paragraph (c): substituted, on 31October 2008, by section4(5) oftheCopyright(NewTechnologies)AmendmentAct2008(2008 No 27).
Section2(1) materialtime paragraph(d): substituted,on31October2008,by section4(5) oftheCopyright(NewTechnologies)AmendmentAct2008(2008 No 27).
Section 2(1) material time paragraph (e): repealed, on 31 October 2008, by section4(5) oftheCopyright(NewTechnologies)AmendmentAct2008(2008 No 27).
Section 2(1) Minister : substituted, on 1 October 1995, by section 10(3) of the Department of Justice (Restructuring) Act 1995 (1995 No 39).
Section 2(1) National Archives : repealed, on 21 April 2005, by section 67(1) of the Public Records Act 2005 (2005 No 40).
Section 2(1) Office of Parliament paragraph (c): substituted, on 1 July 2001, by section 53 of the Public Audit Act 2001 (2001 No 10).
Section 2(1) performance paragraph (b): amended, on 31 October 2008, by section4(6) oftheCopyright(NewTechnologies)AmendmentAct2008(2008 No 27).
Section 2(1) TPM or technological protection measure: inserted, on 31 October 2008, by section 4(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 2(1) TPM circumvention device: inserted, on 31 October 2008, by section4(2) oftheCopyright(NewTechnologies)AmendmentAct2008(2008 No 27).
Section 2(1) TPM work : inserted, on 31 October 2008, by section 4(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
| s 3 | Copyright Act 1994 Reprinted as at7 July 2010 |
| 3 | Associated definitions for communication works |
| (1) | References in this Act to a person making a communication |
| work are— |
| (a) to the person transmitting the communication work or |
| makingitavailablebymeansofacommunication tech |
| nology, if that person has responsibility to any extent |
| for its contents; and |
| (b) any person who provides the contents of the work and |
| who makes with the person communicating the work |
| the arrangements necessary for its communication. |
| (2) | For the purposes of this Act, in the case of communicating a |
| work by satellite transmission,— |
| (a) the place from which the work is communicated is the |
| place from which the signals carrying the work are |
| transmitted to the satellite; and |
| (b) the person communicating the work is the person who |
| transmits those signals to the satellite. |
| Section3: substituted, on31 October 2008,bysection5oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27). |
| 4 | Meaning of cable programme service, and associated |
| definitions |
| [Repealed] |
| Section 4: repealed, on 31 October 2008, by section 6 of the Copyright (New |
| Technologies) Amendment Act 2008 (2008 No 27). |
| 5 | Meaning of author |
| (1) | ForthepurposesofthisAct,theauthorofaworkistheperson |
| who creates it. |
| (2) | For the purposes of subsection (1), the person who creates a |
| work shall be taken to be,— |
| (a) in the case of a literary, dramatic, musical, or artistic |
| work that is computer-generated, the person by whom |
| thearrangementsnecessaryfor the creationofthework |
| are undertaken: |
| (b) in the case of a sound recording or film, the person by |
| whomthearrangementsnecessaryforthemakingofthe |
| recording or film are undertaken: |
- (c)
- in the case of a communication work, the person who makes the communication work:
- (d)
- in the case of a typographical arrangement of a published edition, the publisher.
(e) [Repealed]
(3) The author of a work of any of the descriptions referred to in subsection (2) may be a natural person or a body corporate. Compare: Copyright, Designs and Patents Act 1988 s 9(1)–(3) (UK) Section5(2)(c): substituted,on31October2008,bysection7oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section5(2)(d): substituted,on31October2008,bysection7oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 5(2)(e): repealed, on 31 October 2008, by section 7 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
6 Meaning of work of joint authorship
- (1)
- In this Act, the term work of joint authorship means a work produced by the collaboration of 2 or more authors in which the contribution of each author is not distinct from that of the other author or authors.
- (2)
- Acommunicationworkmustbetreatedasaworkofjointauthorship in any case where more than 1 person is to be taken as making the communication work.
- (3)
- References in this Act to the author of a work shall be construed in relation to a work of joint authorship as a reference to all the authors of the work.
- (4)
- Where, in relation to a work of joint authorship, copyright would not exist in the work if 1 or more of the authors were the sole author or sole joint authors, the work shall be treated as if the other author or authors were the sole author or sole joint authors of the work. Compare: 1962 No 33 ss 12(3), (4), (6); Copyright, Designs and Patents Act
1988 s 10 (UK)
Section 6(2): substituted, on 31 October 2008, by section 8 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
7 Meaning of unknown authorship
- (1)
- For the purposes of this Act, a work is of unknown authorshipiftheidentityoftheauthorisunknownor,inthecaseofa
(d) distribution of imported copies that are not infringing copies within the meaning of section 12 subsequent to their importation into New Zealand.
- (2)
- Theissueofcopiesofaworktothepublic,inrelationtocomputerprograms,includestherentalofcopiesofcomputerprogramstothepublicandrentalsubsequenttothoseworkshaving been put into circulation; but does not include any such rental where—
- (a)
- the computer program is incorporated into any other thing; and
- (b)
- the rental of the computer program is not the principal purpose or one of the principal purposes of the rental; and
- (c)
- the computer program cannot readily be copied by the hirer.
25
| s 8 | Copyright Act 1994 | Reprinted as at7 July 2010 |
| work of joint authorship, if the identity of none of the authors is known. |
| (2) | For the purposes of this Act, the identity of an author shall be regarded as unknown if it is not possible for a person who wishes to ascertain the identity of the author to do so by reasonable inquiry; but if that identity is once known it shall not subsequently be regarded as unknown. Compare: 1962 No 33 s 11(3), (4); Copyright, Designs and Patents Act 1988 s 9(4), (5) (UK) |
| 8 (1) | Meaning of copyright owner Where copyright orany aspect ofcopyright isowned by more than 1 person jointly, references in this Act to the copyright owner, or to the owner of the copyright in the work, are to all |
| owners. |
| (2) | Where different persons are entitled to different aspects of copyright in a work, the copyright owner for any purpose of thisActisthepersonwhoisentitledtotheaspectofcopyright relevant for that purpose. |
| (3) | Subject to the provisions of Part 7, where a question arises under this Act whether an object of any description has been imported, sold, or otherwise dealt with other than pursuant to a copyright licence, the copyright owner shall be taken to be the person entitled to the copyright in respect of its application to the making of objects of that description in the country into which the object was imported or in which it was sold or otherwise dealt with. |
| Compare: 1962 No 33 s 3(10); Copyright, Designs and Patents Act 1988 s 173 (UK) |
| 9 (1) | Meaning of issue to the public References in this Act to the issue of copies of a work to the public mean the act of putting into circulation copies not previouslyputintocirculation;anddonotincludetheactsof— (a) subsequent distribution or sale of those copies; or (b) subject to subsections (2) and (3), subsequent hiring or loan of those copies; or (c) subsequent importation of those copies into New Zealand; or |
(3) Theissueofcopiesofaworktothepublic,inrelationtosound recordings and films, includes the rental of copies of those workstothepublicandrentalsubsequenttothoseworkshaving been put into circulation. Compare: Copyright, Designs and Patents Act 1988 s 18(2) (UK) Section 9(1)(c): amended, on 19 May 1998, by section 4 of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).
Section 9(1)(d): added, on 19 May 1998, by section 4 of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).
Section 9(2): amended, on 31 October 2003, by section 3(1) of the Copyright (ParallelImportationofFilmsandOnusofProof)AmendmentAct2003(2003 No 111).
Section 9(3): amended, on 31 October 2003, by section 3(2) of the Copyright (ParallelImportationofFilmsandOnusofProof)AmendmentAct2003(2003 No 111).
10 Meaning of publication
(1) In this Act, the term publication, in relation to a work,—
- (a)
- meanstheissueofcopiesoftheworktothepublic;and
- (b)
- includes, in the case of a literary, dramatic, musical, or artisticwork,makingitavailabletothepublicbymeans of an electronic retrieval system;—
and publish has a corresponding meaning.
- (2)
- Inthecaseofaworkofarchitectureintheformofabuilding, or an artistic work incorporated in a building, construction of thebuildingshallbetreatedasequivalenttopublicationofthe work.
- (3)
- References in this Act to publication do not include publicationthatisnotintendedtosatisfythereasonablerequirements of the public.
- (4)
- The following acts do not constitute publication for the purposes of this Act:
- (a)
- in the case of a literary, dramatic, or musical work,—
- (i)
- the performance of the work; or
- (ii)
- the communication of the work to the public (otherwise than for the purposes of an electronic retrieval system):
- (b)
- in the case of any artistic work,—
- (i)
- the exhibition of the work; or
- (ii)
- the issue to the public of copies of a film including the work; or
(iii) the communication of the work to the public (otherwise than for the purposes of an electronic retrieval system):
- (c)
- in the case of an artistic work being—
- (i)
- a sculpture; or
- (ii)
- a work of architecture in the form of a building or a model for a building; or
(iii) a work of artistic craftsmanship,— the issue to the public of copies of a graphic work representing, or of photographs of, the work:
- (d)
- in the case of a sound recording or film,—
- (i)
- the playing or showing of the work in public; or
- (ii)
- the communication of the work to the public.
- (5)
- No account shall be taken for the purposes of this section of any unauthorised act. Compare: 1962 No 33 s 3(1), (2), (5), (6); Copyright, Designs and Patents Act
1988 s 175(1), (3)–(6) (UK)
Section 10(4)(a)(ii): amended, on 31 October 2008, by section 9(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 10(4)(b)(iii): amended, on 31 October 2008, by section 9(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 10(4)(d)(ii): substituted, on 31 October 2008, by section 9(3) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
11 Meaning of commercial publication Inthis Act, theterm commercialpublication,inrelationto a literary, dramatic, musical, or artistic work, means the publication of the work consisting of—
- (a)
- issuing copies of the work to the public at a time when copiesmadeinadvanceofthereceiptofordersaregenerally available to the public; or
- (b)
- makingtheworkavailabletothepublicbymeansofan
electronic retrieval system;— and related expressions shall be construed accordingly. Compare: Copyright, Designs and Patents Act 1988 s 175(2) (UK)
12 Meaning of infringing copy
- (1)
- InthisAct,theterminfringingcopy,inrelationtoacopyright work, shall be construed in accordance with this section.
- (2)
- An object is an infringing copy if its making constitutes an infringement of the copyright in the work in question.
- (3)
- An object that a person imports, or proposes to import, into New Zealand is an infringing copy if—
- (a)
- themakingoftheobjectconstitutedaninfringementof the copyright in the work in question in the country in which the object was made; or
- (b)
- the importer would have infringed the copyright in the workinquestioninNewZealandhadtheimportermade the object in New Zealand, unless the object is one to which subsection (5A) or subsection (6) applies.
- (4)
- Where in any proceedings the question arises whether an object is an infringing copy, and it is shown—
- (a)
- that the object is a copy of the work in question; and
- (b)
- that copyright exists in the work or has existed at any
time,— itshallbepresumeduntilthecontraryisprovedthattheobject was made at a time when copyright existed in the work.
(5) In this Act, an infringing copy includes a copy falling to be treated as an infringing copy under any of the following provisions of this Act:
- (a)
- section 85(4) (which relates to incidental recording for the purposes of a communication work):
- (b)
- section93(1) (whichrelatestosubsequentdealingswith copies made under Part 3).
(5A) AnobjectthatapersonimportsorproposestoimportintoNew Zealandisnotaninfringingcopyundersubsection(3)(b)if—
- (a)
- it was made by or with the consent of the owner of the copyright, or other equivalent intellectual property right, in the work in question in the country in which the object was made; or
- (b)
- where no person owned the copyright, or other equivalent intellectual property right, in the work in question inthecountryinwhichtheobjectwasmade,anyofthe following applies:
- (i)
- the copyright protection (or other equivalent intellectual property right protection) formerly affordedtotheworkinquestioninthatcountryhas expired:
- (ii)
- the person otherwise entitled to be the owner of the copyright (or other equivalent intellectual property right) in the work in question in that countryhasfailedtotakesomesteplegallyavailable to them to secure the copyright (or other equivalentintellectualpropertyright)inthework in that country:
(iii) theobjectisacopyin3dimensionsofanartistic work that has been industrially applied in that country inthe mannerspecifiedinsection75(4):
(iv) the object was made in that country by or with the consent of the owner of the copyright in the work in New Zealand.
(6) InthisAct,aninfringingcopydoesnotincludealiterarywork or an artistic work that—
- (a)
- relates to a medicine that has been imported by the Crown pursuant to section 32A of the Medicines Act 1981; and
- (b)
- has been made, copied, published, adapted, or distributed, in an overseas country, by or with the licence
of the owner of the copyright in the work in that country.
Compare: 1962No33s10(5);1990No71s2;Copyright,DesignsandPatents
Act 1988 s 27 (UK)
Section 12(3): substituted, on 19 May 1998, by section 5(1) of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).
Section 12(5)(a): substituted, on 31 October 2008, by section 10 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 12(5A): inserted, on 19 May 1998, by section 5(2) of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).
13 Act to bind the Crown
This Act binds the Crown.
Part 1 Description, ownership, and duration of copyright
Description of copyright
14 Copyright in original works
- (1)
- Copyright is a property right that exists, in accordance with this Act, in original works of the following descriptions:
- (a)
- literary, dramatic, musical, or artistic works:
- (b)
- sound recordings:
- (c)
- films:
- (d)
- communication works:
- (e)
- typographical arrangements of published editions.
- (2)
- A work is not original if—
- (a)
- itis,ortotheextentthatitis,acopyofanotherwork;or
- (b)
- it infringes the copyright in, or to the extent that it infringes the copyright in, another work.
(3) [Repealed]
Compare: 1962 No 33 ss 7(1), 13(1), 14(1), 15(1), 17(1); Copyright, Designs and Patents Act 1988 ss 1(1), 5(2), 6(6), 7(6), 8(2) (UK)
Section 14(1): substituted, on 31 October 2008, by section 11(1) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section14(3): repealed,on31October2008,bysection11(2)oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
15 Recording necessary for some works
- (1)
- Copyright does not exist in a literary or dramatic or musical workunlessanduntiltheworkisrecorded,inwritingorotherwise.
- (2)
- Itisimmaterialforthepurposesofsubsection(1)whetherthe work is recorded by or with the consent of the author.
- (3)
- Where a work is not recorded by the author, the question whether copyright exists in the record, as distinct from the work recorded, is not affected by anything in subsection (1). Compare: Copyright, Designs and Patents Act 1988 s 3(2), (3) (UK)
16 Acts restricted by copyright
- (1)
- The owner of the copyright in a work has the exclusive right todo,inaccordancewith sections30to34 ,thefollowingacts in New Zealand:
- (a)
- to copy the work:
- (b)
- toissuecopiesoftheworktothepublic,whetherbysale or otherwise:
- (c)
- to perform the work in public:
- (d)
- to play the work in public:
- (e)
- to show the work in public:
- (f)
- to communicate the work to the public:
- (g)
- to make an adaptation of the work:
- (h)
- todoanyoftheactsreferredtoinanyofparagraphs(a) to (f) in relation to an adaptation of the work:
- (i)
- toauthoriseanotherpersontodoanyoftheactsreferred to in any of paragraphs (a) to (h).
- (2)
- Subsection (1) applies subject to Parts 3 and 8.
Compare: 1962 No 33 ss 6(1), 7(3), 7(4), 13(5), 14(5), 17(3); Copyright, Designs and Patents Act 1988 s 16(1), (4) (UK)
Section 16(1)(f): substituted, on 31 October 2008, by section 12 of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Qualification for copyright
18 Qualification by reference to author
- (1)
- A work qualifies for copyright if the author is, at the material time,—
- (a)
- a New Zealand citizen; or
- (b)
- anindividualdomiciledorresidentinNewZealand;or
- (c)
- a body incorporated under the law of New Zealand.
- (2)
- A work qualifies for copyright if the author is, at the material time,—
- (a)
- a citizen or subject of a prescribed foreign country; or
- (b)
- an individual domiciled or resident in a prescribed foreign country; or
- (c)
- a body incorporated under the law of a prescribed foreign country.
- (3)
- Subject to subsection (4), a work of joint authorship qualifies forcopyrightif,atthematerialtime,anyoftheauthorssatisfies the requirements of subsection (1) or subsection (2).
- (4)
- Whereaworkofjointauthorshipqualifiesforcopyrightunder this section alone, only those authors who satisfy the requirements of subsection (1) or subsection (2) shall be taken into account for the purposes of the application, to that work, of the following provisions of this Act:
- (a)
- section21 (whichrelatestothefirstownershipofcopyright):
- (b)
- subsections(1)and(4)of section22 (whichrelatetothe duration of copyright in literary, dramatic, musical, or artistic works):
- (c)
- section 67 (which relates to acts permitted on assump tions as to expiry of copyright or death of the author in relation to anonymous or pseudonymous works).
Compare: 1962 No 33 ss 7(1), 12(1), 13(1), 14(1), 15(1), 17(1); Copyright, Designs and Patents Act 1988 s 154 (UK)
19 Qualification by reference to country of first publication
- (1)
- A work (being a literary, dramatic, musical, or artistic work, a sound recording, a film, or a typographical arrangement of a published edition) qualifies for copyright if it is first published—
- (a)
- in New Zealand; or
- (b)
- in a prescribed foreign country.
- (2)
- For the purposes of this section, publication in one country shallnotberegardedasotherthanthefirstpublicationbyreason of simultaneous publication elsewhere; and for this purpose publication elsewhere within the previous 30 days shall be treated as simultaneous. Compare: 1962 No 33 ss 7(2), 13(2), 14(2), 17(1); Copyright, Designs and
Patents Act 1988 s 155 (UK)
21 First ownership of copyright
- (1)
- Subjecttotheprovisionsofthissection,thepersonwhoisthe authorofaworkisthefirstownerofanycopyrightinthework.
- (2)
- Where an employee makes, in the course of his or her employment, a literary, dramatic, musical, or artistic work, that person’s employer is the first owner of any copyright in the work.
- (3)
- Where—
- (a)
- a person commissions, and pays or agrees to pay for, thetakingofaphotographorthemakingofacomputer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording; and
- (b)
- the work is made in pursuance of that commission,— that person is the first owner of any copyright in the work.
- (4)
- Subsections (2) and (3) apply subject to any agreement to the contrary.
- (5)
- Subsections (1) to (4) apply subject to sections 26 and 28.
Compare: 1962 No 33 ss 9, 13(4), 14(4); Copyright, Designs and Patents Act 1988 s 11 (UK)
Duration of copyright
22 Duration of copyright in literary, dramatic, musical, or artistic works
- (1)
- Subject to the following provisions of this section, copyright in a literary, dramatic, musical, or artistic work expires at the endoftheperiodof50yearsfromtheendofthecalendaryear in which the author dies.
- (2)
- Iftheworkiscomputer-generated,copyrightexpiresattheend of the period of 50 years from the end of the calendar year in which the work is made.
- (3)
- Iftheworkisofunknownauthorship,copyrightexpiresatthe endoftheperiodof50yearsfromtheendofthecalendaryear inwhichitisfirstmadeavailabletothepublicbyanauthorised act.
- (4)
- Forthepurposesofsubsection(3),thecircumstancesinwhich a work may be made available to the public include,—
- (a)
- in the case of a literary, dramatic, or musical work,—
- (i)
- performance in public:
- (ii)
- communication to the public:
- (b)
- in the case of an artistic work,—
- (i)
- exhibition in public:
- (ii)
- the playing or showing in public of a film that includes the work:
(iii) communication to the public.
- (5)
- If—
- (a)
- a work is of unknown authorship; and
- (b)
- copyright in the work has expired pursuant to subsection (3); and
- (c)
- theidentityoftheauthorbecomesknownafterthecopy
right has expired,— subsection (1) does notapply to revive copyrightinthe work.
- (6)
- In relation to a work of joint authorship,—
- (a)
- thereferenceinsubsection(1)tothedeathoftheauthor shall be construed,—
- (i)
- if the identity of all the authors is known, as a reference to the last of them to die:
- (ii)
- if the identity of 1 or more, but not all, of the authors is known, as a reference to the death of the last of the authors whose identity is known; and
- (b)
- thereferenceinsubsection(5)totheidentityoftheauthor becoming known shall be construed as a reference to the identity of any of the authors becoming known.
- (7)
- This section does not apply to copyright in a work to which section 26 or section 28 applies. Compare: 1962 No 33 s 8(1); Copyright, Designs and Patents Act 1988 s 12
(UK)
Section22(4): substituted, on31October2008,bysection14 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
23 Duration of copyright in sound recordings and films
(1) Copyright in a sound recording or film expires—
- (a)
- at the end of the period of 50 years from the end of the calendar year in which the work is made; or
- (b)
- ifitismadeavailabletothepublicbyanauthorisedact before the end of that period, 50 years from the end of the calendar year in which it is so made available,—
whichever is the later.
(2) For the purposes of subsection (1), a sound recording or film is made available to the public when—
- (a)
- the work is first—
- (i)
- published; or
- (ii)
- communicated to the public; or
- (b)
- in the case of a film or film soundtrack,—
- (i)
- the work is first shown in public; or
- (ii)
- the work is first played in public.
Compare: 1962No33ss13(3),14(3);Copyright,DesignsandPatentsAct1988 s 13 (UK)
Section23(2): substituted, on31October2008,bysection15 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
24 Duration of copyright in communication works
- (1)
- Copyright in a communication work expires at the end of the period of 50 years from the end of the calendar year in which the communication work is first communicatedto the public.
- (2)
- Copyright in a repeated communication work expires at the sametimeascopyright in the initialcommunication workexpires.
- (3)
- Thereisnocopyrightinarepeatedcommunicationworkthatis communicatedtothepublicaftercopyrightintheinitialcommunication work has expired. Section 24: substituted, on 31 October 2008, by section 16 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
25 Duration of copyright in typographical arrangement of published editions Copyright in a typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition is first published. Compare: 1962 No 33 s 17(2); Copyright, Designs and Patents Act 1988 s 15
(UK)
Crown copyright
26 Crown copyright
- (1)
- Where a work is made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services,—
- (a)
- theworkqualifiesforcopyrightnotwithstanding section 17(1) ; and
- (b)
- the Crown is the first owner of any copyright in the work.
- (2)
- Copyright in such a work is referred to in this Act as Crown copyright, notwithstanding that suchcopyright is assigned to another person.
- (3)
- Crown copyright shall expire,—
- (a)
- in the case of a typographical arrangement of a publishededition, at theendoftheperiodof25yearsfrom theendofthecalendaryearinwhichtheworkismade:
- (b)
- in the case of any other work, at the end of the period of100yearsfromtheendofthecalendaryearinwhich the work is made.
- (4)
- In the case of a work of joint authorship where 1 or more, but not all, of the authors are persons employed or engaged by the Crown under a contract of service, a contract of apprenticeship, oracontractfor services,this sectionappliesonlyin relation to those authors and the copyright existing by virtue of their contribution to the work.
- (5)
- Subject to this section and to any other express provision of this Act, the provisions of this Act apply in relation to Crown copyright as to other copyright.
- (6)
- Subsection (1) applies subject to any agreement to the contrary.
- (7)
- This section is subject to section 27.
Compare: 1962 No 33 s 52; Copyright, Designs and Patents Act 1988 s 163 (UK)
27 No copyright in certain works
(1) No copyright exists in any of the following works, whenever those works were made:
- (a)
- any Bill introduced into the House of Representatives:
- (b)
- any Act as defined in section 29 of the Interpretation Act 1999:
- (c)
- any regulations:
- (d)
- any bylaw as defined in section 2 of the Bylaws Act 1910:
- (e)
- the New Zealand Parliamentary Debates:
- (f)
- reports of select committees laid before the House of Representatives:
- (g)
- judgments of any court or tribunal:
- (h)
- reportsofRoyalcommissions,commissionsofinquiry, ministerial inquiries, or statutory inquiries.
(1A) No Crown copyright exists in any work, whenever that work was made,—
- (a)
- in which the Crown copyright has not been assigned to another person; and
- (b)
- that is incorporated by reference in a work referred to in subsection (1).
(1B) Except as specified in subsection (1A), nothing in subsection (1)affectscopyrightinanyworkthatisincorporatedbyreference in a work referred to in subsection (1).
(2) Subsection(1)shallcomeintoforceonadatetobeappointed by the Governor-General by Order in Council; and 1 or more OrdersinCouncilmaybemadeappointingdifferent datesfor different paragraphs of that subsection. Section27(1): broughtintoforce,on1April2001,bytheCopyrightActCom
mencement Order 2000 (SR 2000/245).
Section 27(1): amended, on 1 November 1999, pursuant to section 38 of the Interpretation Act 1999 (1999 No 85).
Section 27(1A): inserted, on 14 April 2005, by section 3 of the Copyright Amendment Act 2005 (2005 No 33).
Section 27(1B): inserted, on 14 April 2005, by section 3 of the Copyright Amendment Act 2005 (2005 No 33).
28 Copyright vesting in certain international organisations
- (1)
- Whereanoriginalwork(beingaliterary,dramatic,musical,or artistic work or a film) is made by an officer or employee of, or is published by, an international organisation to which this section applies,—
- (a)
- theworkqualifiesforcopyrightnotwithstanding section 17(1) ; and
- (b)
- the organisation is the first owner of any copyright in the work.
- (2)
- The copyright of an international organisation under this section shall expire,—
- (a)
- in the case of a typographical arrangement of a publishededition, at theendoftheperiodof25yearsfrom the end of the calendar year in which the work is made or such longer period as may be specified for the purposes of this paragraph pursuant to subsection (5):
- (b)
- inthecaseofanyotherwork,attheendoftheperiodof 50years fromtheendofthecalendaryearinwhichthe workismadeorsuchlongerperiodasmaybespecified for the purposes of this paragraph pursuant to subsection (5).
- (3)
- Subject to this section and to any other express provision of this Act, the provisions of this Act apply in relation to the copyright of an internationalorganisation under this section.
- (4)
- An international organisation to which this section applies shallbedeemedtohave,andtohavehadatallmaterialtimes, the legal capacities of a body corporate for the purposes of holding,dealingwith,andenforcingcopyrightandinconnection with all legal proceedings relating to copyright.
- (5)
- The Governor-General may from time to time, by Order in Council,—
- (a)
- declare that any international organisation is an international organisation to which this section applies:
- (b)
- for the purposes of complying with any international obligationofNewZealand,specifyaperiodforthepurposes of paragraph (a) or paragraph (b) of subsection (2).
Compare: 1962 No 33 s 50; Copyright, Designs and Patents Act 1988 s 168 (UK)
Part 2 Infringement of copyright
Primary infringement of copyright
29 Infringement of copyright
- (1)
- Copyright in a work is infringed by a person who, other than pursuant to a copyright licence, does any restricted act.
- (2)
- ReferencesinthisActtothedoingofarestrictedactaretothe doing of that act—
- (a)
- inrelationtotheworkasawholeoranysubstantialpart of it; and
- (b)
- either directly or indirectly;— and it is immaterial whether any intervening acts themselves infringe copyright.
- (3)
- This Part is subject to Parts 3 and 8.
Compare: 1962No33ss3(1);Copyright,DesignsandPatentsAct1988s16(2), (3), (4) (UK)
30 Infringement by copying
The copying of a work is a restricted act in relation to every description of copyright work. Compare: Copyright, Designs and Patents Act 1988 s 17(1) (UK)
31 Infringement by issue of copies to public
The issue of copies of a work to the public is a restricted act in relation to every description of copyright work. Compare: Copyright, Designs and Patents Act 1988 s 18(1) (UK)
32 Infringement by performance or playing or showing in public
- (1)
- Theperformanceofaworkinpublicisarestrictedactonlyin relation to a literary, dramatic, or musical work.
- (2)
- The playing or showing of a work in public is a restricted act only in relation to a sound recording, film, or communication work.
- (3)
- Where copyright in a work is infringed by the performance, playing, or showing of the work in public by means of apparatus for receiving visual images or sounds conveyed by electronic or other means,—
- (a)
- the person by whom the visual images or sounds are sent; and
- (b)
- in the case of a performance, the performers— shall not be regarded as responsible for the infringement.
- (4)
- For the purposes of subsection (3), a person who sends visual images or sounds does not include a person who retransmits visual images or sounds. Compare: Copyright, Designs and Patents Acts 1988s19(1), (3), (4) (UK)
Section 32(2): amended, on 31 October 2008, by section 17 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
34 Infringement by making adaptation or act done in relation to adaptation
- (1)
- Themakingofanadaptationofaworkisarestrictedactonly in relation to a literary, dramatic, or musical work.
- (2)
- Forthepurposesofsubsection(1),anadaptationismadewhen it is recorded, in writing or otherwise.
- (3)
- The doing of any of the acts specified in any of sections 30 to 33 or in subsection (1), in relation to an adaptation of a work, is also a restricted act in relation to the literary, dramatic, or musical work from which the adaptation was made.
- (4)
- Forthepurposesofsubsection(3),wheretheactdoneinrelationtoanadaptationofaworkisanactspecifiedin section32 or section33 ,itisimmaterialwhethertheadaptationhasbeen recorded, in writing or otherwise, at thetime the act is done. Compare: Copyright, Designs and Patents Act 1988 s 21(1), (2) (UK)
Secondary infringement of copyright
35 Infringement by importation
- (1)
- A person infringes copyright in a work if—
- (a)
- that person imports into New Zealand an object that is an infringing copy of the work and,—
- (i)
- in the case of a work that is a sound recording, film, or computer program to which subsection
(6) applies, that person knows or ought reasonablytoknowthattheobjectisaninfringingcopy; or
- (ii)
- in the case of other works, that person knows or hasreasontobelievethattheobjectisaninfringing copy; and
- (b)
- the object was imported into New Zealand without a copyright licence; and
- (c)
- the object was imported into New Zealand other than for that person’s private and domestic use.
- (2)
- In civil proceedings for infringement of copyright under subsection (1), in the case of a work that is a sound recording, film, orcomputer program towhich subsection (6) applies,—
- (a)
- an object is presumed to be an infringing copy in the absence of evidence to the contrary; and
- (b)
- the court must not require any person to disclose any informationconcerningthesourcesofsupplyoftheobjectifitappearstothecourtthatitisunreasonabletodo so.
- (3)
- Apersonalsoinfringescopyrightinafilmtowhichsubsection
- (6)
- applies if that person—
- (a)
- imports a copy of the film into New Zealand within 9monthsoffirstbeingmadeavailabletothepublic;and
- (b)
- knowsorhasreasontobelievethatthefilmisimported into New Zealand within 9 months of first being made available to the public; and
- (c)
- isnotthelicenseeofthecopyrightinNewZealand;and
- (d)
- imports the film into New Zealand other than for that person’s private and domestic use.
- (4)
- Forthepurposesofsubsection(3),afilmisfirstmadeavailable tothepublic(assetoutin section23(2) )byanyauthorisedact whether in New Zealand or elsewhere.
- (5)
- Subsections (3) and (4) are repealed on 31 October 2013.
- (6)
- This subsection applies to the following sound recordings, films, and computer programs:
- (a)
- a sound recording stored in a material form that is separate from any device or apparatus capable of playing sound recordings:
- (b)
- a film produced principally for cinematic release, or a copy of that film, or a copy of a substantial part of that film:
- (c)
- a computer program stored in a material form that is separate from any device or apparatus capable of executing computer programs.
Section 35: substituted, on 31 October 2003, by section 4 of the Copyright (ParallelImportationofFilmsandOnusofProof)AmendmentAct2003(2003 No 111).
Section35(1)(c): amended,on31October2008,bysection19(1) oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section35(3): substituted,on12April2008,bysection19(2)oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section35(4): substituted,on12April2008,bysection19(2)oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section35(5): substituted,on12April2008,bysection19(2)oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
36 Possessing or dealing with infringing copy Copyright in a work is infringed by a person who, in New Zealand, other than pursuant to a copyright licence,—
- (a)
- possesses in the course of a business; or
- (b)
- inthecourseofabusinessorotherwise,sellsorletsfor hire; or
- (c)
- inthecourseofabusiness,offersorexposesforsaleor hire; or
- (d)
- in the course of a business, exhibits in public or distributes; or
- (e)
- distributesotherwisethaninthecourseofabusinessto such an extent as to affect prejudicially the copyright owner—
an object that is, and that the person knows or has reason to believe is, an infringing copy of the work. Compare: 1962No33ss10(3),(4),18(3),(4);Copyright,DesignsandPatents
Act 1988 s 23 (UK)
37 Providing means for making infringing copies
(1) Copyright in a work is infringed by a person who, other than pursuant to a copyright licence,—
- (a)
- makes; or
- (b)
- imports into New Zealand; or
- (c)
- possesses in the course of a business; or
- (d)
- inthecourseofabusinessorotherwise,sellsorletsfor hire; or
- (e)
- inthecourseofabusiness,offersorexposesforsaleor hire—
anobjectspecificallydesignedoradaptedformakingcopiesof thatwork,knowingorhavingreasontobelievethattheobject is to be used to make such infringing copies.
(2) Copyright in a work is infringed by a person who, other than under a copyright licence, communicates a work to 1 or more persons, knowing or having reason to believe that infringing copieswillbemadebymeansofthereceptionofthecommunication in New Zealand or elsewhere. Compare: Copyright, Designs and Patents Act 1988 s 24 (UK) Section37(2): substituted, on31October2008,bysection20 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
38 Permitting use of premises for infringing performance
- (1)
- Wherecopyrightinaliterary,dramatic,ormusicalworkisinfringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless, when the person gave that permission, he or she believed on reasonable grounds that the performance would not infringe copyright.
- (2)
- In this section, the term place of public entertainment includespremisesthatareoccupiedmainlyforpurposesother than public entertainment but are from time to time made available for hire for the purposes of public entertainment. Compare: Copyright, Designs and Patents Act 1988 s 25 (UK)
39 Provision of apparatus for infringing performance, etc
(1) Where copyright in a work is infringed by a performance of the work in public, or by the playing or showing of the work in public, by means of apparatus for—
- (a)
- playing sound recordings; or
- (b)
- showing films; or
- (c)
- receiving visual images or sounds conveyed by elec
tronic means,— the persons described in subsections (2) to (4) are also liable for the infringement.
- (2)
- A person who supplied the apparatus, or any substantial part of it, is liable for the infringement if, when he or she supplied the apparatus or part,—
- (a)
- heorsheknew,orhadreasontobelieve,thattheapparatuswaslikelytobesousedastoinfringecopyright;or
- (b)
- in the case of apparatus whose normal use involves a performance, playing, or showing in public, he or she hadnoreasonablegroundsforbelievingthattheapparatus would not be so used as to infringe copyright.
- (3)
- An occupier of premises who gave permission for the apparatus to be brought onto the premises is liable for the infringement if, when the occupier gave that permission, he or she knew, or had reason to believe, that the apparatus was likely to be so used as to infringe copyright.
- (4)
- A person who supplied a copy of a sound recording or film used to infringe copyright is liable for the infringement if, when the person supplied the copy, he or she knew, or had reason to believe, that the copy he or she supplied, or a copy made directly or indirectly from the copy, was likely to be so used as to infringe copyright. Compare: Copyright, Designs and Patents Act 1988 s 26 (UK)
Part 3 Acts permitted in relation to copyright works
40 Provisions to be construed independently
The provisions of this Part are to be construed independently of one another so that the fact that an act is not permitted by oneprovisiondoesnotmeanthatitisnotpermittedbyanother provision. Compare: Copyright, Designs and Patents Act 1988 s 28(4) (UK)
41 Incidental copying of copyright work
- (1)
- Copyright in a work is not infringed by—
- (a)
- theincidentalcopyingoftheworkinanartisticwork,a sound recording, a film, or a communication work; or
- (b)
- the issue to the public of copies of an artistic work, the playing of a sound recording, the showing of a film, or the communication of a work to the public, in which a copyright work has been incidentally copied; or
- (c)
- the issue to the public of copies of a sound recording, film,orcommunicationworktowhichparagraph(a)or
(b) applies.
- (2)
- For the purposes of subsection (1), a musical work, words spoken or sung with music, or so much of a sound recording or communication work as includes a musical work or those words,must not be regarded as incidentally copied in another work if the musical work or the words, sound recording, or communication work is deliberately copied. Section 41: substituted, on 31 October 2008, by section 21 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
42 Criticism, review, and news reporting
- (1)
- Fair dealing with a work for the purposes of criticism or review, of that or another work or of a performance of a work, does not infringe copyright in the work if such fair dealing is accompanied by a sufficient acknowledgement.
- (2)
- Fair dealing with a work for the purpose of reporting current eventsbymeansofasoundrecording,film,orcommunication work does not infringe copyright in the work.
- (3)
- Fair dealing with a work (other than a photograph) for the purposes of reporting current events by any means other than those referred to in subsection (2) does not infringe copyright intheworkifsuchfairdealing is accompanied byasufficient acknowledgement. Compare: 1962No33ss19(2),(3),20(2),(3);Copyright,DesignsandPatents
Act 1988 s 30 (UK)
Section42(2): substituted, on31October2008,bysection22 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
43 Research or private study
- (1)
- Fairdealingwithaworkforthepurposesofresearchorprivate study does not infringe copyright in the work.
- (2)
- Fortheavoidanceofdoubt,itisherebydeclaredthatfairdealing with a published edition for the purposes of research or private study does not infringe copyright in either the typographicalarrangementoftheedition or any literary, dramatic, musical, or artistic work or part of a work in the edition.
- (3)
- In determining, for the purposes of subsection (1), whether copying, by means of a reprographic process or by any other means, constitutesfair dealing for thepurposes of research or private study, a court shall have regard to—
- (a)
- the purpose of the copying; and
- (b)
- the nature of the work copied; and
- (c)
- whether the work could have been obtained within a reasonable time at an ordinary commercial price; and
- (d)
- the effect of the copying on the potential market for, or value of, the work; and
- (e)
- wherepartofaworkiscopied,theamountandsubstantiality of the part copied taken in relation to the whole work.
- (4)
- This section does not authorise the making of more than 1 copyofthesamework,orthesamepartofawork,onanyone occasion, but in this subsection copy does not include a non infringingtransientreproductiontowhichsection43A applies. Compare: 1962 No 33 ss 19(1), (5), 20(1); Copyright Act 1968 s 40(1), (2)
(Aust); Copyright, Designs and Patents Act 1988 s 29(1), (2) (UK)
Section43(4): substituted, on31October2008,bysection23 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
43A Transient reproduction of work A reproduction of a work does not infringe copyright in the work if the reproduction—
- (a)
- is transient or incidental; and
- (b)
- is an integral and essential part of a technological process for—
- (i)
- making or receiving a communication that does not infringe copyright; or
- (ii)
- enabling the lawful use of, or lawful dealing in, the work; and
- (c)
- has no independent economic significance.
Section43A:inserted,on31October2008,by section24 oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
Education
44 Copying for educational purposes of literary, dramatic, musical or artistic works or typographical arrangements
- (1)
- Copyright in a literary, dramatic, musical, or artistic work or the typographical arrangement of a published edition is not infringed by the copying of the whole or part of the work or edition if—
- (a)
- thecopyingisdonebymeansofareprographicprocess or by any other means; and
- (b)
- the copying is done—
- (i)
- in the course of preparation for instruction; or
- (ii)
- for use in the course of instruction; or
(iii) in the course of instruction; and
- (c)
- the copying is done by or on behalf of the person who is to give, or who is giving, a lesson at an educational establishment; and
- (d)
- nomorethan1copyofthewholeorpartoftheworkor edition is made on any one occasion.
- (2)
- Copyright in a literary, dramatic, musical, or artistic work or the typographical arrangement of a published edition is not infringed by the copying of the whole or part of the work or edition if—
- (a)
- the copying is not done by means of a reprographic process; and
- (b)
- the copying is done—
- (i)
- in the course of preparation for instruction; or
- (ii)
- for use in the course of instruction; or
(iii) in the course of instruction; or (iv) after the course of instruction; and
- (c)
- thecopyingisdonebyapersonwhoistogive,isgiving, orhasgiventhelessonorbyapersonwhoistoreceive, is receiving, or has received the lesson; and
- (d)
- 1 or more copies of the whole or part of the work or edition is or are made on any one occasion.
- (3)
- Copyrightinaliterary,dramatic,ormusicalworkorthetypographical arrangement of a published edition is not infringed by the copying of part of the work or edition if—
- (a)
- thecopyingisdonebymeansofareprographicprocess or by any other means; and
- (b)
- the copying is done for an educational purpose; and
- (c)
- the copying is done by or on behalf of an educational establishment; and
- (d)
- 1ormorecopiesofpartoftheworkoreditionisorare made on any one occasion; and
- (e)
- nochargeismadeforthesupplyofacopytoanystudent or other person who is to receive, is receiving, or has received a lesson; and
- (f)
- subject to subsection (4), either,—
- (i)
- intheperiodbeginningwiththecommencement of this Act and ending with the close of 31 December1997, the copying is of nomorethan the greater of 5% of the work or edition or 5 pages of the work or edition; or
- (ii)
- onandafter1January1998,thecopyingisofno morethanthegreaterof3%oftheworkoredition or 3 pages of the work or edition.
- (4)
- If the effect of subparagraph (i) or subparagraph (ii) of subsection (3)(f) would be that the whole of a work or edition is copied, those subparagraphs shall not apply and the copying thatispermittedundersubsection(3)shallbeofnomorethan 50% of the whole work or edition.
(4A) Acopyofaworkmadeinaccordancewithsubsections(3)and (4)maybecommunicatedtoapersonwhoisastudentorother personwhoistoreceive,isreceiving,orhasreceived,alesson that relates to the work.
- (5)
- Copyright in an artistic work is not infringed by the copying, bymeans of areprographicprocessorbyanyother means,of thewholeorapartofthatworkiftheartisticworkisincluded withinthepartofanyworkoreditioncopiedundersubsection (3).
- (6)
- Whereanypartofaworkoreditioniscopiedundersubsection
- (3)
- by or on behalf of an educational establishment,—
- (a)
- thatpartofthatworkoreditionmaynot,within14days of that copying, be copied again under that subsection by or on behalf of that educational establishment; and
- (b)
- nootherpartofthatworkoreditionmay,within14days of that copying, be copied under that subsection by or on behalf of that educational establishment.
(7) In subsections (3) to (6),— published edition or edition,in relationto a collectivework, means that part of the edition containing each work or part of a work work,inrelationtoacollectivework,meanseachoftheworks
or parts of works in the collective work. Compare: Copyright, Designs and Patents Act 1988 ss 32(1), 36(1) (UK)
Section 44(4A): inserted, on 31 October 2008, by section 25 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
44A Storing copies for educational purposes
- (1)
- An educational establishment does not infringe copyright in a work that is made available on a website or other electronic retrievalsystembystoringacopyofthepageorpagesinwhich the work appears if—
- (a)
- the material is stored for an educational purpose; and
- (b)
- the material—
- (i)
- is displayed under a separate frame or identifier; and
- (ii)
- identifiestheauthor(ifknown)andsourceofthe work; and
(iii) states the name of the educational establishment and the date on which the work was stored; and
- (c)
- the material is restricted to use by authenticated users.
- (2)
- Subsection (1) does not apply, and the educational establishment does infringe copyright in the work, if the educational establishment knowingly fails to delete the stored material withinareasonabletimeafterthematerialbecomesnolonger relevant to the course of instruction for which it was stored.
- (3)
- In subsection (1), authenticated user means a person who—
- (a)
- isaparticipantinthecourseofinstructionforwhichthe material is stored; and
- (b)
- can access the stored material only through a verification processthatverifies that heor sheis entitled to access the stored material.
Section44A:inserted,on31October2008,by section26 oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
45 Copying for educational purposes of films and sound recordings
- (1)
- Copyright in any work that is a film, sound recording, or communication work, or any work included in a film, sound recording, or communication work, is not infringed by the copyingofthatworkinthecircumstancessetoutinsubsection (2).
- (2)
- The circumstances referred to in subsection (1) are—
- (a)
- thatthecopyingconsistsoforincludesthemakingofa film or film soundtrack—
- (i)
- in the course of preparation for instruction; or
- (ii)
- for use in the course of instruction; or
(iii) in the course of instruction; or (iv) after the course of instruction,— wherethelessonisonhowtomakefilmsorfilmsoundtracks; and
- (b)
- thatthecopyingisdonebyoronbehalfofapersonwho is to give, is giving, or has given the lesson or by or on behalfofapersonwhoistoreceive,isreceiving,orhas received the lesson; and
- (c)
- that no charge is made for the supply of a copy to any student or other person who is to receive, is receiving, or has received the lesson.
- (3)
- Copyright in—
- (a)
- any work that is a sound recording; or
- (b)
- any work included in a sound recording— is not infringed by the copying of that work in the circumstances set out in subsection (4).
- (4)
- The circumstances referred to in subsection (3) are—
- (a)
- that the copying is done—
- (i)
- in the course of preparation for instruction; or
- (ii)
- for use in the course of instruction; or
(iii) in the course of instruction; or - (iv)
- after the course of instruction,— where the lesson—
- (v)
- relates to the learning of a language; or
- (vi)
- is conducted by correspondence; and
- (b)
- thatthecopyingisdonebyoronbehalfofapersonwho is to give, is giving, or has given the lesson or by or on
behalfofapersonwhoistoreceive,isreceiving,orhas received the lesson; and
- (c)
- that no charge is made for the supply of a copy to any student or other person who is to receive, is receiving, or has received the lesson.
(5) Subsections (3) and (4) do not apply if or to the extent that licencesauthorisingthecopyingofaworkinthecircumstances setoutinsubsection(4)areavailableunderalicensingscheme and the person doing the copying knew that fact. Compare: Copyright, Designs and Patents Act 1988 s 32(2) (UK) Section45(1): substituted, on31October2008,bysection27 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
46 Anthologies for educational use
- (1)
- The copying of a short passage from a published work (being a literary, dramatic, or musical work) in a collection that—
- (a)
- isintendedforuseineducationalestablishmentsandis sodescribedinitstitle,andinanyadvertisementsissued by or on behalf of the publisher of that collection; and
- (b)
- consistsmainlyofmaterialinwhichnocopyrightexists or in which copyright is owned by the publisher ofthat collection or the Crown—
does not infringe copyright in the work if—
- (c)
- the publisher of the work did not intend it to be used in such establishments; and
- (d)
- the passage is accompanied by a sufficient acknowledgement.
- (2)
- Subsection (1) does not authorise the copying of more than 2 passages from copyright works by the same author in collections published by the same publisher overany period of 5 years.
- (3)
- In relation to any given passage, the reference in subsection
- (2)
- to passages from copyright works by the same author—
- (a)
- shallbetakentoincludepassagesfromcollectiveworks of which that author is one of the authors; and
- (b)
- ifthepassageinquestionisfromsuchacollectivework, shall be taken to include passages from works by any of the authors, whether alone or in collaboration with another.
- (4)
- Referencesinthissectiontotheuseofaworkinaneducational establishment are to any use for the educational purposes of such an establishment.
- (5)
- Subsection(1)doesnotapplytoaliteraryworkthatisacomputer program. Compare: 1962 No 33 s 19(6); Copyright, Designs and Patents Act 1988 s 33
(UK)
47 Performing, playing, or showing work in course of activities of educational establishment
(1) The performance of a literary, dramatic, or musical work beforeanaudienceconsistingofpersonswhoarestudentsorstaff members at an educational establishment or are directly connected with the activities of the establishment—
- (a)
- by a student or staff member in the course of the activities of the establishment; or
- (b)
- at the establishment, by any person for the purposes of
instruction,— isnotaperformanceinpublicforthepurposesof section32(1) .
- (2)
- The playing or showing, for the purposes of instruction, of a soundrecording,film,orcommunicationworktotheaudience described in subsection (1) at an educational establishment is notaplayingorshowingoftheworkinpublicforthepurposes of section 32(2).
- (3)
- For the purposes of this section, a person shall not be treated as a persondirectly connected with the activities of an educationalestablishment byreasononlythatthepersonisaparent or guardian of a student at that educational establishment. Compare: 1962 No 33 s 21(5); Copyright, Designs and Patents Act 1988 s 34
(UK)
Section47(2): substituted, on31October2008,bysection28 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
48 Copying and communication of communication work for educational purposes
- (1)
- This section applies when a copy of a communication work is—
- (a)
- made or communicated by or on behalf of an educational establishment; or
- (b)
- made and supplied by an educational resource supplier to an educational establishment.
- (2)
- In any case to which subsection (1)(a) applies, the making or communication of a copy of the communication work by or onbehalfofaneducationalestablishment,andthesubsequent communication of the copy within the educational establishment, doesnot infringecopyright in the communicationwork or in any work included in it if the copy is made or communicated for the educational establishment’s educational purposes.
- (3)
- Inanycasetowhichsubsection(1)(b)applies,themakingand supplyofacopyofthecommunicationworkbyaneducational resourcesupplierdoesnotinfringecopyrightinthecommunication work or in any work included in it if the copy is made and supplied for the educational purposes of the educational establishment to which it is supplied.
- (4)
- However, the exclusions from infringement of copyright in subsections (2) and (3) do not apply to—
- (a)
- thecopyingofacommunicationworkifortotheextent that—
- (i)
- licences authorising the copying of the communication work by or on behalf of educational establishmentsorbyeducationalresourcesuppliers are available under a licensing scheme; and
- (ii)
- the educational establishment or the educational resource supplier, as the case may be, knew that fact; or
- (b)
- the communication of a communication work if or to the extent that—
- (i)
- licences authorising the communication of the copy by or on behalf of educational establishments are available under a licensing scheme; and
- (ii)
- the educational establishment knew that fact; or
- (c)
- the supply of a communication work by an educational resource supplier if or to the extent that—
- (i)
- licences authorising the supply of the communication work are available under a licensing scheme; and
- (ii)
- theeducationalresourcesupplierknewthatfact.
Section 48: substituted, on 31 October 2008, by section 29 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
49 Things done for purposes of examination
Copyright is not infringed by anything done for the purposes of an examination, whether by way of setting the questions, communicating the questions to the candidates, or answering the questions. Compare: 1962 No 33 s 21(4)(b); Copyright, Designs and Patents Act 1988
s 32(3) (UK)
Libraries and archives
50 Interpretation
(1) In sections51to56C ,unlessthecontextotherwiserequires,— archive—
- (a)
- means—
- (i)
- Archives New Zealand (Te Rua Mahara o te Kāwanatanga); or
- (ii)
- the National Library; or
(iii) the sound archive maintained by Radio New Zealand Limited; or - (iv)
- the film archive maintained by Television New Zealand Limited; or
- (v)
- the film archive maintained by the New Zealand Film Archive Incorporated; or
- (vi)
- any collection of documents (within the mean ing of section 2 of the Official Information Act 1982)ofhistoricalsignificanceorpublic interest thatisinthecustodyofandbeingmaintainedby a body, whether incorporated or unincorporated, thatdoesnotkeepandmaintainthecollectionfor the purpose of deriving a profit; and
- (b)
- includes, in relation only to its holding of public archives (within the meaning of section 4 of the Public Records Act 2005), an approved repository within the meaning of that section of that Act
prescribed library means—
- (a)
- the National Library; or
- (b)
- the Parliamentary Library; or
- (c)
- every law library provided and maintained under sec tion375(1) oftheLawyersandConveyancersAct2006 or provided and maintained by the New Zealand Law Society; or
- (d)
- a library maintained by an educational establishment, government department, or local authority; or
- (e)
- alibraryofanyotherclassoflibraryprescribedbyregulations made under this Act, not being a library conducted for profit.
(2) In sections 51 to 56C, every reference to the librarian of a prescribedlibraryorthearchivistofanarchiveshallbereadas includingapersonactingonbehalfofthelibrarianorarchivist. Compare: Copyright, Designs and Patents Act 1988 s 37(6) (UK) Section 50(1): amended, on 31 October 2008, by section 30 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section50(1)archive paragraph(a)(i): substituted,on21April2005,bysection 67(1) of the Public Records Act 2005 (2005 No 40).
Section 50(1) archive paragraph (b): substituted, on 21 April 2005, by section 67(1) of the Public Records Act 2005 (2005 No 40).
Section50(1)prescribedlibraryparagraph(c): substituted,on1August2008, by section 348 of the Lawyers and Conveyancers Act 2006 (2006 No 1).
Section 50(1) prescribed library paragraph (c): amended, on 7 July 2010, by section 4 of the Copyright Amendment Act 2010 (2010 No 55).
Section 50(2): amended, on 31 October 2008, by section 30 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
51 Copying by librarians of parts of published works
- (1)
- Thelibrarianofaprescribedlibrarymay,iftheconditionscontained in subsection (2) are complied with, make from a published edition (other than a published edition that is an article in a periodican( �/span>, for supply to any person, a copy of a reasonableproportionofanyliterary,dramatic,ormusicalwork,and may include in the copy any artistic work that appears within the proportion copied, without infringing copyright in the literary, dramatic, musical, or artistic work or the typographical arrangement of the published edition.
- (2)
- The conditions referred to in subsection (1) are—
- (a)
- that no person is supplied on the same occasion with more than 1 copy of the same material; and
- (b)
- that, where any person to whom a copy is supplied is requiredtopayforthecopy,thepaymentrequiredisno higher than a sum consisting of the total of the cost of productionofthecopyandareasonablecontributionto the general expenses of the library.
- (3)
- Where any person is supplied with, or otherwise comes into possession of, a copy made in accordance with this section, thatpersonmayusethecopyonlyforthepurposesofresearch or private study.
- (4)
- Thissectiondoesnotapplytoaliteraryworkthatisacomputer program.
- (5)
- In this section, copy includes a digital copy, but in that case section 56B applies as well. Compare: 1962 No 33 s 21(1); Copyright, Designs and Patents Act 1988 s 39
(UK)
Section51(5): added,on31October2008,bysection31oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
52 Copying by librarians of articles in periodicals
- (1)
- Thelibrarianofaprescribedlibrarymay,iftheconditionscontainedinsubsection(2)arecompliedwith,makeforsupplyto any person a copy of—
- (a)
- a literary, dramatic, or musical work, and any artistic work included in that work, that is contained in an article in a periodical; or
- (b)
- a published edition that is an article in a periodical,— withoutinfringingcopyrightintheliterary,dramatic,musical, or artistic work or the typographical arrangement of the published edition.
- (2)
- The conditions referred to in subsection (1) are—
- (a)
- that no person is supplied on the same occasion with more than 1 copy of the same article; and
- (b)
- that no person is supplied on the same occasion with copiesofmorethan1articlecontainedinthesameissue of a periodical, unless the copies supplied all relate to the same subject matter; and
- (c)
- that, where any person to whom a copy is supplied is requiredtopayforthecopy,thepaymentrequiredisno higher than a sum consisting of the total of the cost of
productionofthecopyandareasonablecontributionto the general expenses of the library.
- (3)
- Where any person is supplied with, or otherwise comes into possession of, a copy made in accordance with this section, thatpersonmayusethecopyonlyforthepurposesofresearch or private study.
- (4)
- In this section, copy includes a digital copy, but in that case section 56B applies as well. Compare: 1962 No 33 s 21(1); Copyright, Designs and Patents Act 1988 s 38
(UK)
Section52(4): added,on31October2008,bysection32oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
53 Copying by librarians for users of other libraries
(1) Thelibrarianofaprescribedlibrarymay,iftheconditioncontained in subsection (2) is complied with, make from a publishededition,forsupplytoanotherprescribedlibrary, acopy of,—
- (a)
- subjecttoparagraph(b),areasonableproportionofany literary, dramatic, or musical work (and the librarian may include in the copy any artistic work that appears within the proportion copied):
- (b)
- in relation to a literary, dramatic, or musical work that is contained in an article in a periodical,—
- (i)
- the whole article and any artistic work included in that article; and
- (ii)
- if there is any other article in the same issue of theperiodicalrelatingtothesamesubjectmatter as the first article copied, the whole of that other article and any artistic work included in that article,—
withoutinfringingcopyrightintheliterary,dramatic,musical, or artistic work or the typographical arrangement of the published edition.
- (2)
- Theconditionreferredtoinsubsection(1)isthatapersonhas requested the library to which the copy is being supplied to supply him or her with the copy for the purposes of research or private study.
- (3)
- Where any person is supplied with, or otherwise comes into possession of, a copy made in accordance with this section, thatpersonmayusethecopyonlyforthepurposesofresearch or private study.
- (4)
- Thissectiondoesnotapplytoaliteraryworkthatisacomputer program.
- (5)
- In this section, copy includes a digital copy, but in that case section 56C applies as well. Section53(5): added,on31October2008,bysection33oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
54 Copying by librarians for collections of other libraries
(1) Thelibrarianofaprescribedlibrarymay,iftheconditionscontained in subsection (2) are complied with, make a copy of a literary, dramatic, or musical work and any artistic work included in the work, where the copy is—
- (a)
- from a published edition that is a book; and
- (b)
- for supply to the librarian of another prescribed li
brary,— withoutinfringingcopyrightintheliterary,dramatic,musical, or artistic work or the typographical arrangement of the published edition.
- (2)
- Theconditionsreferredtoinsubsection(1)arethatthelibrarian to whom the copy of the work is supplied—
- (a)
- hasbeenunabletoobtaintheworkatanordinarycommercialpricewithinthe6monthsprecedingthesupply; and
- (b)
- makesandkeepsarecordsufficienttoidentifythework copied; and
- (c)
- permits the inspection of the record by the copyright owner during normal office hours; and
- (d)
- pays, on demand, equitable remuneration to the copyright owner for the work copied.
- (3)
- Insubsection(2)(d),thetermequitableremunerationmeans a sum agreed by the librarian and the copyright owner or, in the absence of agreement, a sum determined by the Tribunal on an application under section 168.
- (4)
- Thissectiondoesnotapplytoaliteraryworkthatisacomputer program.
- (5)
- In this section, copy includes a digital copy, but in that case section 56C applies as well. Compare: 1962 No 3 s 21(2); Copyright, Designs and Patents Act 1988 s 41
(UK)
Section54(5): added,on31October2008,bysection34oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
55 Copying by librarians or archivists to replace copies of works
(1) The librarian of a prescribed library or the archivist of an archive may make a copy (other than a digital copy) of any iteminthecollectionofthelibraryorarchiveforthepurposes of—
- (a)
- preservingorreplacingthatitembyplacingthecopyin the collection of the library or archive in addition to or in place of the item; or
- (b)
- replacinginthecollectionofanotherprescribedlibrary orarchiveanitemthathasbeenlost,destroyed,ordamaged,—
withoutinfringingcopyrightinanyworkincludedintheitem.
- (2)
- Subsection (1) applies only where it is not reasonably practicable to purchase a copy of the item in question to fulfil the purpose.
- (3)
- The librarian of a prescribed library or the archivist of an archive may make a digital copy of any item (the original item)inthecollectionofthelibraryorarchivewithoutinfringing copyright in any work included in the item if—
- (a)
- the original item is at risk of loss, damage, or destruction; and
- (b)
- the digital copy replaces the original item; and
- (c)
- the original item is not accessible by members of the public after replacement by the digital copy except for purposesofresearchthenatureofwhichrequiresormay benefit from access to the original item; and
- (d)
- itisnotreasonablypracticabletopurchaseacopyofthe original item.
- (4)
- The librarian of a prescribed library or the archivist of an archive may make a digital copy of any item (the original
item)inthecollectionofthelibraryorarchivewithoutinfringing copyright in any work included in the item if—
- (a)
- the digital copy is used to replace an item in the collection of another prescribed library or archive that has been lost, damaged, or destroyed; and
- (b)
- itisnotreasonablypracticabletopurchaseacopyofthe
original item. Compare: Copyright, Designs and Patents Act 1988 s 42 (UK)
Section55(1): amended,on31October2008,bysection35(1)oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 55(3): added, on 31 October 2008, by section 35(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 55(4): added, on 31 October 2008, by section 35(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
56 Copyingbylibrariansorarchivistsofcertainunpublished works
- (1)
- The librarian of a prescribed library or the archivist of an archive may, if the conditions contained in subsection (3) are complied with, copy for supply to any person a copy of an unpublishedworkinthelibraryorarchive,withoutinfringing copyright in that work.
- (2)
- Thissectiondoesnotapplyifthecopyrightownerhasprohibited copying of the work and at the time the copy is made the librarianorarchivistmakingitis,oroughttobe,awareofthat fact.
- (3)
- The conditions referred to in subsection (1) are—
- (a)
- that no person is supplied on the same occasion with more than 1 copy of the same work; and
- (b)
- that, where any person to whom a copy is supplied is requiredtopayforthecopy,thepaymentrequiredisno higher than a sum consisting of the total of the cost of productionofthecopyandareasonablecontributionto the general expenses of the library or archive.
- (4)
- Where any person is supplied with, or otherwise comes into possession of, a copy made in accordance with this section, thatpersonmayusethecopyonlyforthepurposesofresearch or private study.
- (5)
- Theprovisionsofthissectiondonotapplytothesoundarchive maintained by Radio New Zealand Limited, the film archive maintained by Television New Zealand Limited, or the film archivemaintainedbytheNewZealandFilmArchiveIncorporated.
- (6)
- In this section, copy includes a digital copy, but in that case section 56B applies as well. Compare: 1962 No 33 s 21(3); Copyright, Designs and Patents Act 1988 s 43
(UK)
Section56(6): added,on31October2008,bysection36oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
56A Library or archive may communicate digital copy to authenticated users
- (1)
- The librarian of a prescribed library or the archivist of an archive does not infringe copyright in a work by communicatingadigitalcopyoftheworktoanauthenticateduserifthe following conditions are met:
- (a)
- the librarian or archivist has obtained the digital copy lawfully; and
- (b)
- the librarian or archivist ensures that each user is informedinwritingaboutthelimitsofcopyingandcommunicationallowedbythisAct,includingthatadigital copyofaworkmayonlybecopiedorcommunicatedby the user in accordance with the provisions of this Act; and
- (c)
- the digital copy is communicated to the user in a form that cannot be altered or modified; and
- (d)
- the number of users who access the digital copy at any one time is notmorethantheaggregate number ofdigital copies of the work that—
- (i)
- the library or the archive has purchased; or
- (ii)
- for which it is licensed.
- (2)
- In subsection (1), authenticated user means a person who—
- (a)
- has a legitimate right to use the services of the library or archive; and
- (b)
- can access the digital copy only through a verification processthatverifiesthatthepersonisentitledtoaccess the digital copy.
Section56A:inserted,on31October2008,by section37 oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
56B Additionalconditionsforsupplyofcopyofworkindigital formatbylibrarianorarchivistundersection51,52,or56 A copy of a work to which section 51, 52, or 56 applies must not be supplied in a digital format, by the librarian of a prescribed library or the archivist of an archive, to a person (A) unless the following conditions are also complied with:
- (a)
- thelibrarianorarchivistmustgiveA,whenthecopyis supplied, a written notice that sets out the terms of use of the copy; and
- (b)
- the librarian or archivist must, as soon as is reasonably practicable, destroy any additional copy made in the process of making the copy that is supplied to A.
Section56B:inserted,on31October2008,by section37 oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
56C Additional condition for making digital copies under section 53 or 54 A copy of a work to which section 53 or 54 applies must not be supplied in a digital format to a library unless the librarian supplying the digital copy destroys, as soon as is reasonably practicable,anyadditionalcopymadeintheprocessofmaking the copy that is supplied. Section56C:inserted,on31October2008,by section37 oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
57 Playing or showing sound recordings or films
- (1)
- ThesoundarchivemaintainedbyRadioNewZealandLimited mayplayasoundrecordingheldinthearchivetoanaudience consistingofmembersofthepublic,withoutinfringingcopyright in the sound recording or in any work included in the sound recording, if the condition contained in subsection (3) is complied with.
- (2)
- The film archive maintained by Television New Zealand Limited or by the New Zealand Film Archive Incorporated may show a film, and play any sound recording associated with the film, held in the archive to an audience consisting of
members of the public, without infringing copyright in the film or in any sound recording associated with the film or in any work included in the film or sound recording, if the condition contained in subsection (3) is complied with.
- (3)
- The condition referred to in subsections (1) and (2) is that, where any person is required to pay to—
- (a)
- hear any sound recording played under subsection (1); or
- (b)
- seeanyfilmshown,andhearanysoundrecordingasso
ciated with the film played, under subsection (2),— thepaymentrequiredisnomorethanareasonablecontribution towards the maintenance of the archive in which the sound recording or film is held.
(4) This section does not apply if or to the extent that licences authorisingtheplayingofasoundrecording,ortheshowingof afilmandtheplayingofasoundrecordingassociatedwiththe film, by an archive to which this section applies are available and if the archive knew that fact.
Public administration
58 Copying by Parliamentary Library for members of Parliament
- (1)
- AnofficeroftheParliamentaryLibrarymay,iftheconditions contained in subsection (3) are complied with, supply to any member of Parliament a copy of a literary or dramatic work, and any artistic work included in that work, without infringing copyright in that literary, dramatic, or artistic work or the typographical arrangement of a published edition.
- (2)
- AnofficeroftheParliamentaryLibrarymay,iftheconditions contained in subsection (3) are complied with, supply to any member of Parliament a recording of a communication work oratranscriptofarecordingofthecommunicationwork,without infringing copyright in the communication work or any work included in that communication work.
- (3)
- The conditions referred to in subsections (1) and (2) are—
- (a)
- that no member of Parliament is supplied on the same occasion with more than 1 copy or recording or transcript, as the case may be, of the same material; and
- (b)
- that the copy or recording or transcript is required by thatmemberofParliamentforthepurposesofperforming his or her duties as such a member.
Section 58(2): amended, on 31 October 2008, by section 38 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
59 Parliamentary and judicial proceedings
- (1)
- Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.
- (2)
- Copyright is not infringed by anything done for the purposes of reporting parliamentary or judicial proceedings. Compare: 1962No33ss19(4),20(7);Copyright,DesignsandPatentsAct1988
s 45 (UK)
60 Royal commissions and statutory inquiries
- (1)
- Copyright is not infringed by anything done for the purposes oftheproceedings ofaRoyalcommission,commission ofinquiry, ministerial inquiry, or statutory inquiry.
- (2)
- Copyright is not infringed by anything done for the purposes ofreportinganyproceedingsofaRoyalcommission,commissionofinquiry,ministerialinquiry,orstatutoryinquirythatare held in public.
- (3)
- Copyrightinaworkisnotinfringedbytheissuetothepublic ofcopiesofthereportofaRoyalcommission,commissionof inquiry,ministerialinquiry,orstatutoryinquirycontainingthe work or material from it. Compare: Copyright, Designs and Patents Act 1988 s 46 (UK)
61 Material open to public inspection or on official register
- (1)
- Subject to any Order in Council made under subsection (4), wherematerialisopentopublicinspectionorpublicreference pursuanttoastatutoryrequirement,orisonastatutoryregister, copyrightinthematerialisnotinfringedbythecopyingofthe material, by or with the authority of the appropriate person, forapurposethatdoesnotinvolvetheissuingofcopiestothe public.
- (2)
- Subject to any Order in Council made under subsection (4), wherematerialisopentopublicinspectionorpublicreference pursuanttoastatutoryrequirement,copyrightisnotinfringed
bythe copying or issuing tothe public of copiesofthematerial, by or with the authority of the appropriate person, for the purposeofenablingthematerialtobeinspectedatamoreconvenient time or place or otherwise facilitating the exercise of anyrightforthepurposeofwhichtherequirementisimposed.
- (3)
- Subject to any Order in Council made under subsection (4), where material that is open to public inspection or public referencepursuanttoastatutoryrequirement,orthatisonastatutory register, contains information about matters of general scientific, technical, commercial, or economic interest, copyrightisnotinfringedbythecopyingorissuingtothepublicof copiesofthematerial,byorwiththeauthorityoftheappropriate person, for the purpose of disseminatingthat information.
- (4)
- The Governor-General may from time to time, by Order in Council,providethatall oranyofsubsections(1) to(3)shall, in such cases as may be specified in the order, apply only to copies marked in such manner as may be so specified.
- (5)
- The Governor-General may from time to time, by Order in Council,providethatalloranyofsubsections(1)to(3)apply, tosuchextentandwithsuchmodificationsasmaybespecified in the order, in relation to—
- (a)
- material made open to public inspection or public reference by—
- (i)
- an international organisation specified in the order; or
- (ii)
- apersonspecifiedintheorderwhohasfunctions inNewZealandunderaninternationalagreement to which New Zealand is a party; or
- (b)
- a register maintained by an international organisation
specified in the order,— asthoseprovisionsapplyinrelationtomaterialopentopublic inspection or public reference pursuant to a statutory requirement or by virtue of being on a statutory register.
(6) In this section,— appropriate person means the person required to make the
material open to public inspection or public reference or, as the case may be, the person maintaining the register
statutory register means a register maintained pursuant to a
statutory requirement statutory requirement means a requirement imposed by a provision of an enactment. Compare: 1962No33s61;Copyright,DesignsandPatentsAct1988ss47,49
(UK)
62 Material communicated to the Crown in course of public business
- (1)
- This section applies where—
- (a)
- aliterary,dramatic,musical,orartisticworkhas,inthe course of public business, been communicated to the Crown for any purpose, by or with the licence of the copyright owner; and
- (b)
- adocument(withinthemeaningof section2 oftheOfficialInformationAct1982)recordingorembodyingthe workisownedby,orisinthecustodyorcontrolof,the Crown.
- (2)
- The Crown may, for—
- (a)
- the purpose for which the work was communicated to the Crown; or
- (b)
- any related purpose that could reasonably have been
anticipated by the copyright owner,— copy the work, and issue copies of the work to the public, without infringing copyright in the work.
- (3)
- TheCrownmaynotcopyawork,orissuecopiesofaworkto the public, under this section if the work has previously been published otherwise than under this section.
- (4)
- In subsection (1), the term public business includes any activity carried on by the Crown.
- (5)
- Thissectionhaseffectsubjecttoanyagreementtothecontrary between the Crown and the copyright owner. Compare: Copyright, Designs and Patents Act 1988 s 48 (UK)
63 Use of copyright material for services of the Crown
- (1)
- Copyrightinaworkisnotinfringedbyanythingdoneinrelation to the work, by or on behalf of the Crown or any person authorised in writing by a government department,—
- (a)
- for the purpose of national security or during a period of emergency; or
- (b)
- in the interests of the safety or health of the public or any members of the public.
- (2)
- Whereanyactisdoneundersubsection(1),theCrownshallbe liabletopay,outofmoneyappropriatedbyParliamentforthe purpose, equitable remuneration to the copyright owner upon suchtermsasmaybeagreeduponbetweentheCrownandthe copyright owner or, in the absence of agreement, upon such terms as shall be determined by the Tribunal.
- (3)
- No act to which subsection (1) applies shall—
- (a)
- constitute publication of a work; or
- (b)
- affect the term of copyright in a work. Compare: 1962 No 33 s 53(1), (3), (4)
64 Rights of third parties in respect of Crown use
- (1)
- No provision of any assignment or licence in force between the copyright owner and a person other than a government department shall be effective to prevent any act being done in relation to a copyright work, where that act is done under section 63.
- (2)
- Where—
- (a)
- an act is done under section 63; and
- (b)
- anexclusivelicenceisinforceinrespectoftheworkin
relation to which the act is done,— the Crown shall be liable to pay, out of money appropriated by Parliament for the purpose, equitable remuneration to the licenseeuponsuchtermsasmaybeagreedbetweentheCrown and the licensee or, in the absence of agreement, upon such terms as shall be determined by the Tribunal.
(3) Where—
- (a)
- apersonhasarightinrelationtoawork,byanylicence other than an exclusive licence; and
- (b)
- a payment is made, in respect of that work, under sec tion 63 to the copyright owner or under subsection (2) to the exclusive licensee,—
the person is entitled to recover from the owner or exclusive licensee,asthecasemaybe,suchpartofanypaymentasmay beagreed betweenthatpersonandthecopyright owner orthe
69
exclusive licensee, as the case may be, or, in the absence of agreement, as shall be determined by the Tribunal. Compare: 1962 No 33 s 54
65 Proceedings against the Crown
- (1)
- Where any employee or agent of the Crown infringes copyright in a work, and the infringement is committed with the authority of the Crown, civil proceedings in respect of the infringement shall, subject to this Act, lie against the Crown under the Crown Proceedings Act 1950.
- (2)
- Nothinginsubsection(1)shallaffecttherightsoftheCrown, or any person authorised by a government department, under section 63. Compare: 1962 No 33 s 55(1), (2)
66 Acts done under statutory authority
- (1)
- Wherethedoingofaparticularactisspecificallyauthorisedby anenactment,thedoingofthatactdoesnotinfringecopyright, unless the enactment provides otherwise.
- (2)
- Nothinginthissectionshallbeconstruedasexcludinganydefence of statutory authority otherwise available under or pursuant to any enactment. Compare: Copyright, Designs and Patents Act 1988 s 50 (UK)
Literary, dramatic, musical, or artistic works
67 Acts permitted on assumptions as to expiry of copyright or death of author in relation to anonymous or pseudonymous works
- (1)
- Copyright in a literary, dramatic, musical, or artistic work is not infringed by any act done at a time when, or in pursuance of arrangements made at a time when,—
- (a)
- itisnotpossibleforapersonwhowishestodosotoascertaintheidentityoftheauthorbyreasonableinquiry; and
- (b)
- it is reasonable to assume—
- (i)
- that copyright has expired; or
- (ii)
- that the author died 50 years or more before the beginningofthecalendaryearinwhichtheactis done or the arrangements are made.
- (2)
- Subsection (1)(b)(ii) does not apply in relation to—
- (a)
- a work in which Crown copyright exists under section 26 ; or
- (b)
- a work—
- (i)
- in which copyright originally vested in an inter national organisation under section 28; and
- (ii)
- in respect of which an order made under that section specifies a copyright period longer than 50 years.
- (3)
- In relation to a work of joint authorship,—
- (a)
- thereferenceinsubsection(1)(a)toitsbeingpossibleto ascertaintheidentityoftheauthorshallbeconstruedas areferencetoitsbeingpossibletoascertaintheidentity of any of the authors; and
- (b)
- the reference in subsection (1)(b)(ii) to the author having died shall be construed as a reference to all the authors having died.
Compare: Copyright, Designs and Patents Act 1988 s 57 (UK)
68 Use of recording of spoken words in certain cases
(1) Where a recording of spoken words is made, in writing or otherwise, for the purpose of—
- (a)
- reporting current events; or
- (b)
- communicating to the public the whole or part of the
work,— itisnotaninfringementofcopyrightinthewordsasaliterary worktousetherecordingormaterialtakenfromit(ortocopy the recording, orany suchmaterial, and use thecopy)for that purpose,iftheconditionsinsubsection(2)arecompliedwith.
(2) The conditions referred to in subsection (1) are that—
- (a)
- therecordingisadirectrecordofthespokenwordsand is not taken from a previous recording or from a communication work; and
- (b)
- the making of the recording was not prohibited by the speaker and, where copyright already existed in the work, did not infringe copyright; and
- (c)
- the use made of the recording or material taken from it isnotofakindprohibitedbyoronbehalfofthespeaker orcopyrightownerbeforetherecordingwasmade;and
- (d)
- the use is by or with the authority of a person who is
lawfully in possession of the recording. Compare: Copyright, Designs and Patents Act 1988 s 58 (UK)
Section68(1)(b): amended,on31October2008,bysection39(1)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section68(2)(a): amended,on31October2008,bysection39(2) oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
69 Provision of Braille copies of literary or dramatic works
- (1)
- AbodyprescribedbyregulationsmadeunderthisActmay,if the conditions contained in subsection (2) are complied with, make or communicate copies or adaptations of published literary or dramatic works for the purpose of providing persons who have a print disability with copies that are in Braille or otherwise modified for their special needs, without infringing copyright in those literary or dramatic works.
- (2)
- The conditions referred to in subsection (1) are—
- (a)
- that the prescribed body has made reasonable efforts to obtain a copy of the complete work, in Braille or otherwisemodifiedasrequiredbythepersonorpersons to whom it is to be provided, within a reasonable time atanordinarycommercialprice,buthasbeenunableto do so; and
- (b)
- that the copies are provided only to persons having a print disability; and
- (c)
- that, where any body makes a copy or adaptation of a published literary or dramatic work under this section, thebodyshall,assoonasisreasonablypracticable,take allreasonablestepstonotifytheownerofthecopyright intheworkofthemakingofthecopyoradaptation;and
- (d)
- that, where any person to whom a copy is provided is required to pay for the copy, the payment required is no higher than a sum consisting of the total cost of the productionofthecopyandareasonablecontributionto the general expenses of the prescribed body.
- (3)
- A body shall not be prescribed for the purposes of subsection
(1) if it is established or conducted for profit.
- (4)
- Forthepurposesofthissection,apersonhasaprintdisability if he or she—
- (a)
- is blind; or
- (b)
- suffers severe impairment of his or her sight; or
- (c)
- is unable to hold or manipulate books; or
- (d)
- is unable to focus or move his or her eyes; or
- (e)
- suffers a handicap with respect to visual perception.
Section 69(1): amended, on 31 October 2008, by section 40 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
70 Public reading or recitation
- (1)
- The reading in public or recitation in public by 1 person of a reasonable extract from a published literary or dramatic work shallnotbetreatedasaperformanceinpublicforthepurposes of section32(1) ,ifthatreadingorrecitationisaccompaniedby a sufficient acknowledgement.
- (2)
- Copyrightinaworkisnotinfringedbythemakingofasound recording, or the communication to the public, of a reading or recitation that under subsection (1) is not treated as a performance in public, if the recording or communication work consistsmainlyofmaterialinrelationtowhichitisnotnecessary to rely on that subsection. Compare: 1962 No 33 s 19(8); Copyright, Designs and Patents Act 1988 s 59
(UK)
Section70(2): substituted, on31October2008,bysection41 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
71 Abstracts of scientific or technical articles Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue copies of the abstract to the public. Compare: Copyright, Designs and Patents Act 1988 s 60(1) (UK)
72 Recordings of folk songs
- (1)
- Asoundrecordingofaperformanceofasongmaybemadefor thepurposeofincludingthesonginanarchivemaintainedby abodyprescribedbyregulationsmadeunderthisAct,without infringing copyright in the words as a literary work or in the accompanying musical work, if the conditions in subsection
(2) are complied with.
- (2)
- The conditions referred to in subsection (1) are that—
- (a)
- the words are unpublished and of unknown authorship at the time the recording is made; and
- (b)
- themakingoftherecordingdoesnotinfringeanyother copyright; and
- (c)
- the making of the recording is not prohibited by any performer.
- (3)
- Copies of a sound recording made in reliance on subsection (1)andincludedinanarchivemaintainedbyabodyprescribed by regulations made under this Act may, if the condition contained in subsection (4) is complied with, be made and supplied by the archivist without infringing copyright in the recording or the works included in it.
- (4)
- Theconditionreferredtoinsubsection(3)isthatnopersonis furnished with more than 1 copy of the same recording. Compare: Copyright, Designs and Patents Act 1988 s 61 (UK)
73 Representationofcertainartisticworksonpublicdisplay
- (1)
- This section applies to the following works:
- (a)
- buildings:
- (b)
- works(beingsculptures,modelsforbuildings,orworks of artistic craftsmanship) that are permanently situated in a public place or in premises open to the public.
- (2)
- Copyright in a work to which this section applies is not infringed by—
- (a)
- copyingtheworkbymakingagraphicworkrepresenting it; or
- (b)
- copyingtheworkbymakingaphotographorfilmofit; or
- (c)
- communicatingtothepublicavisualimageofthework.
- (3)
- Copyrightisnotinfringedbytheissuetothepublicofcopies, or the communication to the public, of anything the making ofwhichwas,underthissection,notaninfringementofcopyright. Compare: Copyright, Designs and Patents Act 1988 s 62 (UK)
Section73(2)(c): substituted,on31October2008,bysection42(1)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section 73(3): substituted, on 31 October 2008, by section 42(2) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
74 Special exception from protection of literary or artistic works
- (1)
- The making of any object in 3 dimensions (including, subject to subsection (2), a copy in 2 dimensions reasonably required for the making of the object) does not infringe copyright in a literary or artistic work, if the work or a copy of it forms part of—
- (a)
- a patent specification that—
- (i)
- is open to public inspection in the New Zealand Patent Officein respectofaNew Zealand patent that, for any reason, has ceased to have effect; and
- (ii)
- is used for the purpose of making the object; or
- (b)
- a representation or specimen of a design that—
- (i)
- is open to public inspection in the New Zealand Patent Office in respect of a design for which registeredprotectioninNewZealandhasceased; and
- (ii)
- is used for the purpose of making the object.
- (2)
- Subsection (1) does not authorise—
- (a)
- the making of a copy in 2 dimensions of an artistic work—
- (i)
- to which subsection (1) applies; and
- (ii)
- that is in 2 dimensions,— wherethecopyismadedirectlyfromthatartisticwork; or
- (b)
- themakingofacopyofaliteraryworktowhichsubsection (1) applies, where the copy is made directly from that literary work.
- (3)
- Whereapatentthathasceasedtohaveeffectisrestoredbyan order made under section 35 of the Patents Act 1953, nothing done pursuant to subsection (1) in the period beginning with the day on which the patent ceased to have effect and ending withthecloseofthedayonwhichtheorderismadeshallconstitute an infringement of copyright in any literary or artistic workorcopyoftheworkformingpartofthepatentspecification. Compare: 1962 No 33 s 20A; 1985 No 134 s 4
75 Special exception from protection of artistic work that has been applied industrially
- (1)
- The making of—
- (a)
- any object in 3 dimensions; or
- (b)
- subject to subsection (3), a copy in 2 dimensions rea
sonably required for the making of the object— does not infringe copyright in an artistic work if, when the object or copy is made, the artistic work has been applied industrially, in New Zealand or in any other country, by or with the licence of the copyright owner,—
- (c)
- inthecaseofaworkofartisticcraftsmanship,morethan 25 years before the object or copy is made:
- (d)
- in the case of a sculpture that is a cast or pattern for an object that has a primarily utilitarian function, more than 16 years before the object or copy is made:
- (e)
- subjecttosubsection(2),inthecaseofanyotherartistic work, more than 16 years before the object or copy is made.
- (2)
- Subsection (1) does not apply to—
- (a)
- asculpturethatisnotacastorpatternforanobjectthat has a primarily utilitarian function; or
- (b)
- a work of architecture, being a building or a model for a building.
- (3)
- Subsection (1) does not authorise the making of a copy in 2 dimensions of an artistic work that is in 2 dimensions, where the copy is made directly from that artistic work.
- (4)
- For the purposes of subsection (1), an artistic work is applied industrially if—
- (a)
- more than 50 copies in 3 dimensions are made of the work, for the purposes of sale or hire; or
- (b)
- theworkiscopiedin3dimensionsin1ormoreobjects manufacturedinlengths,forthepurposesofsaleorhire; or
- (c)
- the work is copied as a plate that has been used to produce—
- (i)
- morethan50copiesofanobjectin3dimensions for the purpose of sale or hire; or
- (ii)
- 1 or more objects in 3 dimensions manufactured in lengths for the purposes of sale or hire.
- (5)
- For the purposes of subsection (4), 2 or more copies in 3 dimensions that are of the same general character and intended for use together are a single copy. Compare: 1962 No 33 s 20B; 1985 No 134 s 5
76 Special exception from protection of literary and artistic works relating to medicines
Thecopyingoradaptationor publication of aliterarywork or anartisticworkdoesnotinfringecopyrightinthatworkifthat work—
- (a)
- relates to a medicine that has been imported by the Crown pursuant to section 32A of the Medicines Act 1981; and
- (b)
- has been made, copied, published, adapted, or distributed, in an overseas country, by or with the licence of the owner of the copyright in the work in that country.
Compare: 1962 No 33 s 20C; 1990 No 71 s 5
77 Making of subsequent works by same artist
Wheretheauthorofanartisticworkisnotthecopyrightowner, he or she does not infringe copyright in that work by copying the work in making another artistic work, if the main design of the earlier work is not repeated or imitated. Compare: 1962 No 33 s 20(9); Copyright, Designs and Patents Act 1988 s 64
(UK)
78 Reconstruction of buildings Anything done for the purposes of reconstructing a building does not infringe copyright—
- (a)
- in the building; or
- (b)
- in any drawings or plans in accordance with which the building was, by or with the licence of the copyright owner, constructed.
Compare: 1962No33 s20(10);Copyright,DesignsandPatentsAct1988 s65 (UK)
Computer programs, sound recordings, andfilms
79 Rental by educational establishments and libraries Copyrightinawork(beingacomputerprogram,soundrecording, or film) is not infringed by the rental of that work to any personbyaneducationalestablishmentoraprescribedlibrary within the meaning of section 50, where—
- (a)
- theeducationalestablishmentorprescribedlibrarydoes noteffecttherentaloftheworkforthepurposesofmaking a profit; and
- (b)
- the work that is the subject of the rental has previously been put into circulation with the licence of the copyright owner.
80 Back-up copy of computer program
- (1)
- Subject to subsection (3), copyright in a computer program is notinfringedbythemakingofacopyofthecomputerprogram if—
- (a)
- the copy is made by or on behalf of the lawful user of thecopyoftheprogram(inthissectionreferredtoasthe original copy) from which the first-mentioned copy is made; and
- (b)
- thecopyismadesolelyforthepurposeofbeingusedby or on behalf of the lawful user of the original copy—
- (i)
- instead of the original copy in order to preserve the original copy for use if the copy is lost, destroyed, or rendered unusable; or
- (ii)
- iftheoriginalcopyislost,destroyed,orrendered unusable.
- (2)
- If the original copy is lost, destroyed, or rendered unusable, the copy made pursuant to subsection (1) shall be deemed for the purposes of this section to be the original copy.
- (3)
- Subsection (1) does not apply to the making of a copy of a computer program—
- (a)
- from an infringing copy of the computer program; or
- (b)
- contrary to an express direction by or on behalf of the owner of the copyright in the computer program given tothelawfuluseroftheoriginalcopynotlaterthanthe timewhenthelawfuluseroftheoriginalcopyacquired that original copy.
- (4)
- For the purposes of this section,—
- (a)
- areferencetoacomputerprogramincludesareference to an adaptation of that program; and
- (b)
- a reference to a copy of a computer program is a reference to any object in which the program is reproduced in a material form; and
- (c)
- areferencetoanexpressdirection,inrelationtoacopy ofacomputerprogram,includesareferencetoaclearly legibledirectionprintedonthecopyoronapackagein which the copy is supplied.
Compare: Copyright Act 1968 s 43A (Aust)
80A Decompilation of computer program
- (1)
- The lawful user of a copy of a computer program expressed inalowlevellanguagedoesnotinfringecopyrightintheprogrambydecompilingit,iftheconditionsinsubsection(2)are met.
- (2)
- The conditions referred to in subsection (1) are that—
- (a)
- decompilationisnecessarytoobtaininformationnecessary for the objective of creating an independent programthatcanbeoperatedwiththeprogramdecompiled or with another program; and
- (b)
- the information obtained from the decompilation is not used for any purpose other than the objective referred to in paragraph (a).
- (3)
- In particular, the conditions in subsection (2) are not met if—
- (a)
- theinformationnecessarytocreatetheindependentprogram is readily available to the lawful user without de-compiling the computer program; or
- (b)
- the lawful user does not confine decompilation of the computerprogramstrictlytothestepsthatarenecessary to create an independent program; or
- (c)
- thelawfulusergivestheinformationobtainedfromdecompilingthecomputer programtoanyperson when it isnotnecessaryforcreatinganindependentprogramto do so; or
- (d)
- the lawful user uses the information obtained from de-compiling the computer program to create a program that is substantially similar in its expression to the program that has been decompiled; or
- (e)
- the lawful user uses the information obtained from de-compiling the computer program to do any act that is restricted by copyright.
- (4)
- In this section, decompile means—
- (a)
- toconvertacomputerprogramexpressedinalowlevel language into a versionexpressed inahigher level language; or
- (b)
- tocopytheprogramasanecessaryincidentofconverting it into that version.
Section80A:inserted,on31October2008,by section43 oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
80B Copying or adapting computer program if necessary for lawful use
- (1)
- The lawful user of a computer program (A) does not infringe copyright in it by copying or adapting it, if—
- (a)
- copying or adapting it is necessary for A’s lawful use of the program (for example, to correct an error in the program); and
- (b)
- a properly functioning and error-free copy of the program is not available to A within a reasonable time at an ordinary commercial price.
- (2)
- Thissectiondoesnotapplytocopyingoradaptingthatisper mitted under section 80A or 80C.
Section80B:inserted,on31October2008,by section43 oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
80C Observing, studying, or testing of computer program The lawful user of a computer program (A) does not infringe copyright in it by observing, studying, or testing the functioning of the program in order to determine the ideas and principles that underlie any element of the program if A does so while performing the acts of loading, displaying, running, transmitting, or storing the program that A is entitled to do. Section80C:inserted,on31October2008,by section43 oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
80D Certain contractual terms relating to use of computer programs have no effect A term or condition in an agreement for the use of a computerprogramhasnoeffectinsofarasitprohibitsorrestricts any activity undertaken in accordance with section 80A(2) or 80B(1) . Section80D:inserted,on31October2008,by section43 oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
81 Playing of sound recordings for purposes of club, society, etc
- (1)
- It is not an infringement of copyright in a sound recording to play the sound recording as part of the activities of, or for the benefit of, a club, society, or other organisation, if the conditions contained in subsection (2) are complied with.
- (2)
- The conditions referred to in subsection (1) are—
- (a)
- that the club, society, or organisation is not established or conducted for profit; and
- (b)
- that the main objects of the club, society, or organisation are charitable or are otherwise concerned with the advancement of religion, education, or social welfare; and
- (c)
- that the proceeds of any charge for admission to the place where the recording is to be heard are applied
solely for the purposes of the club, society, or organisation.
Compare: 1962 No 33 s 13(6); Copyright, Designs and Patents Act 1988 s 67
(UK)
81A Copying sound recording for personal use
- (1)
- Copyright in a sound recording and in a literary or musical work contained in it is not infringed by copying the sound recording, if the following conditions are met:
- (a)
- the sound recording is not a communication work or part of a communication work; and
- (b)
- the copy is made from a sound recording that is not an infringing copy; and
- (c)
- the sound recording is not borrowed or hired; and
- (d)
- the copy is made by the owner of the sound recording; and
- (e)
- that owner acquired the sound recording legitimately; and
- (f)
- the copy is used only for that owner’s personal use or thepersonaluseofamemberofthehouseholdinwhich the owner lives or both; and
- (g)
- no more than 1 copy is made for each device for playing sound recordings that is owned by the owner of the sound recording; and
- (h)
- theownerofthesoundrecordingretainstheownership ofboththesoundrecordingandofanycopythatismade under this section.
- (2)
- For the avoidance of doubt, subsection (1) does not apply if the owner of the sound recording is bound by a contract that specifiesthecircumstancesinwhichthesoundrecordingmay be copied. Section81A:inserted,on31October2008,by section44 oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
Communication works
Heading: substituted,on31October2008,bysection45oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
82 Recording for purposes of maintaining standards in programmes
The author of a communication work does not infringe copyright in it, or in any work includedin it, by recording it, if the recording is made and used solely for the purpose of checking onthe maintenance ofstandards in communication works made by the author. Section 82: substituted, on 31 October 2008, by section 45 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
83 Recording for purposes of complaining
- (1)
- A person (A) does not infringe copyright in a communication work,orinanyworkincludedinit,byrecordingitorcommunicatingit or bothto acomplaint authority, iftherecording or the communication or both are done solely for the purpose of complaining to a complaint authority.
- (2)
- However, subsection (1) does not apply, and A does infringe copyright in the communication work recorded and in any work included in the recording, if A retains the recording for any longer than is reasonably necessary to prepare and despatch the complaint.
- (3)
- If a person infringes copyright under subsection (2), the recording is treated as an infringing copy.
- (4)
- In this section and in section 84, complaint authority means any person or body that is responsible for dealing with complaints about the content of communication works, including the content of advertisements in communication works. Section 83: substituted, on 31 October 2008, by section 45 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
84 Recording for purposes of time shifting
- (1)
- A person (A) does not infringe copyright in a programme included in a communication work, or in any work included in it, by recording it, if—
- (a)
- AmakestherecordingsolelyforA’spersonaluseorthe personal use of a member of the household in which A lives or both; and
- (b)
- Amakestherecordingsolelyforthepurposeofviewing or listening to therecording atamore convenienttime; and
- (c)
- the recording is not made from an on-demand service; and
- (d)
- A has lawful access to the communication work at the time of making the recording.
- (2)
- However, subsection (1) does not apply, and A does infringe copyright in the communication work recorded and in any work included in the communication work, if—
- (a)
- Aretainstherecordingforanylongerthanisreasonably necessary for viewing or listening to the recording at a more convenient time; or
- (b)
- in the event that the person who views or listens to the recording wishes to make a complaint to a complaint authority,A retains therecording foranylonger thanis reasonably necessary to prepare and despatch the complaint.
- (3)
- If a person infringes copyright under subsection (2), the recording is treated as an infringing copy.
Example
A records a movie to be screened on television because she will beatworkwhenitscreens. Shewatchesthemovieontheweekendandthenlatertapesoverit. Providedtheconditionsins84(1) are met, the copy that A makes is not an infringing copy.
BcopiesmusicfromastreamedInternetaudioserviceandkeeps the copy as part of B’s music collection, in order to listen to it multiple times on demand. Copies made for the home library or collection in this way are infringing copies.
Section 84: substituted, on 31 October 2008, by section 45 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
85 Incidental recording for purposes of communication
- (1)
- This section applies where, under an assignment or a licence, apersonisauthorisedtocommunicatethefollowingworksto the public:
- (a)
- a literary, dramatic, or musical work, or an adaptation of that work; or
- (b)
- an artistic work; or
- (c)
- a sound recording or film.
- (2)
- Wherethissectionapplies,thepersonsoauthorisedmay,without the consent of the copyright owner but only if the conditions contained in subsection (3) are complied with, do or authorisethedoingofanyofthefollowingactsforthepurposes of the communication work:
- (a)
- inthecaseofaliterary,dramatic,ormusicalwork,oran adaptationofsuch awork, copy the workoradaptation by making a sound recording or film of the work or adaptation:
- (b)
- inthecaseofanartisticwork,copytheworkbytaking a photograph or making a film of the work:
- (c)
- in the case of a sound recording or a film, make a copy of the recording or film.
- (3)
- The conditions referred to in subsection (2) are—
- (a)
- thattherecording,film,photograph,orcopyisnotused for any other purpose; and
- (b)
- that the recording, film, photograph, or copy is destroyed within 6 months of being first used for communicating the work to the public, unless the Minister has authorised the preservation of any recording, film, photograph, or copy in the records of a government department or in Archives New Zealand (Te Rua Ma-hara o te Kāwanatanga) because of its documentary character or exceptional importance.
- (4)
- A recording, film, photograph, or copy made in accordance with this section shall be treated as an infringing copy—
- (a)
- for the purposes of any use in breach of the condition contained in subsection (3)(a); and
- (b)
- for all purposes after either of the conditions contained in subsection (3) is broken.
Compare: 1962 No 33 s 19(9), (10); Copyright, Designs and Patents Act 1988 s 68 (UK)
Section 85 heading: amended, on 31 October 2008, by section 46(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 85(1): substituted, on 31 October 2008, by section 46(2) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section85(2): amended,on31October2008,bysection46(3)oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section85(3)(b): amended,on31October2008,bysection46(4)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section 85(3)(b): amended, on 21 April 2005, by section 67(1) of the Public Records Act 2005 (2005 No 40).
87 Free public playing or showing of broadcast or cable programme
- (1)
- The playing in public or showing in public of a broadcast (other than a broadcast to which subsections (4) to (7) apply) orcable programmetoan audience who have notpaidfor admission to the place where the broadcast or cable programme is to be heard or seen does not infringe any copyright in—
- (a)
- the broadcast or cable programme; or
- (b)
- any sound recording or film included in the broadcast or programme.
- (2)
- For the purposes of subsection (1), the audience shall be treated as having paid for admission to a place—
- (a)
- iftheyhavepaidforadmissiontoaplaceofwhichthat place forms part; or
- (b)
- ifgoodsorservicesaresuppliedatthatplace,oraplace of which that place forms part,—
- (i)
- at prices that are substantially attributable to the facilitiesaffordedforhearingorseeingthebroadcast or cable programme; or
- (ii)
- at prices exceeding those usually charged there and that are partly attributabletothosefacilities; or
- (c)
- if the place is a hotel, motel, camping ground, or any otherplacethatadmitspersonsforafeeforthepurposes ofobtainingaccommodationofatemporarynatureand they are persons residing at the hotel, motel, camping ground, or other place.
- (3)
- Forthepurposesofsubsection(1),thefollowingpersonsshall not be treated as having paid for admission to a place:
- (a)
- persons admitted as residents or inmates of a place (other than a hotel, motel, camping ground, or other place to which subsection (2)(c) applies):
- (b)
- personsadmittedasmembersofacluborsocietywhere thepaymentisonlyformembershipofthecluborsociety and the provision of facilities for hearing or seeing broadcastsorcableprogrammesisonlyincidentaltothe main purposes of the club or society.
- (4)
- Subsections(5)to(7)applyinrespectoftheplayingorshowing of a broadcast—
- (a)
- that is made for reception in the area in which it is played or shown; and
- (b)
- thatisnotasatellitetransmissionoranencryptedtransmission; and
- (c)
- that is shown or played simultaneously upon reception of the transmission of the broadcast.
- (5)
- The playing in public or showing in public of a broadcast to whichsubsection(4)appliestoanaudiencewhohavenotpaid for admission to the place where the broadcast is to be heard or seen does not infringe any copyright in—
- (a)
- the broadcast; or
- (b)
- any sound recording or film included in the broadcast.
- (6)
- For the purposes of subsection (5), the audience shall be treated as having paid for admission to a place—
- (a)
- iftheyhavepaidforadmissiontoaplaceofwhichthat place forms part; or
- (b)
- ifgoodsorservicesaresuppliedatthatplace,oraplace of which that place forms part,—
- (i)
- at prices that are substantially attributable to the facilitiesaffordedforhearingorseeingthebroadcast; or
- (ii)
- at prices exceeding those usually charged there and that are partlyattributable to those facilities.
- (7)
- Forthepurposesofsubsection(5),thefollowingpersonsshall not be treated as having paid for admission to a place:
- (a)
- persons admitted as residents or inmates of a place (including, without limitation, persons residing in a hotel, motel, camping ground, or any other place that admits
persons for a fee for the purposes of obtaining accommodation of a temporary nature):
- (b)
- personsadmittedasmembersofacluborsocietywhere thepaymentisonlyformembershipofthecluborsociety and the provision of facilities for hearing or seeing broadcastsorcableprogrammesisonlyincidentaltothe main purposes of the club or society.
- (8)
- Where the making of the broadcast or inclusion of the programmeinacableprogrammeservicewasaninfringementof the copyright in a sound recording or film, the fact that the broadcast or programme was heard or seen in public by the reception of the broadcast or cable programme shall be taken into account in assessing the damages for that infringement. Compare: Copyright, Designs and Patents Act 1988 s 72 (UK)
88 Reception and retransmission of broadcast in cable programme service
- (1)
- This section applies where a broadcast made from a place in New Zealand is, by reception and immediate retransmission, included in a cable programme service.
- (2)
- Where this section applies,—
- (a)
- copyright in the broadcast is not infringed if and to the extent that the broadcast—
- (i)
- is made for reception in the area in which the cable programme service is provided; and
- (ii)
- is not a satellite transmission or an encrypted transmission:
- (b)
- copyright in any work included in the broadcast is not infringed ifand totheextent thatthebroadcastismade for reception in the area in which the cable programme service is provided:
- (c)
- wherethemakingofthebroadcastwasaninfringement of the copyright in any work included in the broadcast, the fact that the broadcast was retransmitted as a programme in a cable programme service shall be taken intoaccountinassessingthedamages forthatinfringement.
- (3)
- This section does not apply if or to the extent that licences authorising the reception and immediate retransmission of a
broadcastandanyworkincludedinthebroadcastareavailable to the person providing the cable programme service under a licensing scheme and the person providing the cable programme service knew that fact.
- (4)
- For the purposes of this section only,—
- (a)
- sections 3 and 4 of this Act before repeal by the Copy right (New Technologies) Amendment Act 2008 con tinue toapplyasif theyhad notbeen repealed and as if references in those provisions to “this Act” were references to this section; and
- (b)
- the definition of broadcast in section 2(1) of this Act before repeal by the Copyright (New Technologies) Amendment Act 2008 continues to apply as if that definition had not been repealed.
Compare: 1962No33s60;Copyright,DesignsandPatentsAct1988s73(UK)
Section88(4): added,on31October2008,bysection49oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
89 Provision of subtitled copies of communication work
- (1)
- AbodyprescribedbyregulationmadeunderthisActmay,for thepurposeof providingpeoplewhoare deaforhardofhearing, or physically or mentally disabled in any other way, with copiesthataresubtitledorotherwisemodifiedfortheirspecial needs,makecopiesofacommunicationworkandissuecopies tothepublic, without infringing anycopyrightinthecommunication work or in any work included in the communication work.
- (2)
- A body must not be prescribed for the purposes of subsection
(1) if it is established or conducted for profit.
Section 89: substituted, on 31 October 2008, by section 50 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
90 Recording for archival purposes
- (1)
- A person (A) does not infringe copyright in a communication work, or in any workincluded init, by recording itormaking a copy of a recording of it, if—
- (a)
- thecommunicationworkisinaclassofcommunication work prescribed by regulations made under this Act; and
- (b)
- A makes the recording or the copy for the purpose of placingitinanarchivemaintainedbyabodyprescribed by regulations made under this Act.
- (2)
- A body shall not be prescribed for the purposes of subsection
(1) if it is established or conducted for profit. Compare: Copyright, Designs and Patents Act 1988 s 75 (UK)
Section90(1): substituted, on31October2008,bysection51 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
91 Recording by media monitors
- (1)
- Thissectionappliestoarecording,oratranscriptofarecording,ofacommunicationworkthatconsistswhollyorsubstantially of news or reports or discussions of current events.
(1A) Thepersonwhomakestherecordingortranscriptdoesnotinfringe copyright in the communication work, or in any work includedinthecommunicationwork,iftheconditionsinsubsection (2) are complied with.
- (2)
- The conditions referred to in subsection (1A) are—
- (a)
- that the recording—
- (i)
- is played solely to enable the making of a transcript of it; and
- (ii)
- is destroyed as soon as is reasonably practicable after the transcript is made and not later than 1 month after the recording is made; and
- (b)
- that the transcript of the recording is made only—
- (i)
- by or on behalf of the person who made the recording; and
- (ii)
- for the use of that person or in response to a request from another person for a transcript of the recording; and
- (c)
- that copies of the transcript are made only—
- (i)
- by or on behalf of the person who made the recording; and
- (ii)
- for the use of that person or in response to a request from another person for a copy of a transcript of the recording; and
- (d)
- that the person who made the recording pays equitable remuneration to the copyright owner.
- (3)
- Insubsection(2)(d),thetermequitableremunerationmeans a sum agreed by the person who makes the recording and the copyrightowneror,intheabsenceofagreement,asumdeter mined by the Tribunal on an application under section 168.
- (4)
- This section does not apply if or to the extent that licences authorising the recording of the communication work and the making of transcripts of the recordings are available under a licensing scheme and the person making the recording knew that fact. Section 91(1): substituted, on 31 October 2008, by section 52(1) of the Copy
right (New Technologies) Amendment Act 2008 (2008 No 27).
Section91(1A):inserted,on31October2008,by section52(1) oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section91(2): amended,on31October2008,bysection52(2)oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section91(4): amended,on31October2008,bysection52(3)oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Adaptations
92 Adaptations
An act that under this Act may be done without infringing copyright in a literary, dramatic, or musical work does not, wherethatworkisanadaptation,infringeanycopyrightinthe work from which the adaptation was made. Compare: Copyright, Designs and Patents Act 1988 s 76 (UK)
Internet service provider liability
Heading: inserted, on 31 October 2008, by section 53 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
92A Internetserviceprovidermusthavepolicyforterminating accounts of repeat infringers
- (1)
- AnInternetserviceprovidermustadoptandreasonablyimplementapolicythatprovidesfortermination,inappropriatecircumstances, oftheaccount with that Internet service provider of a repeat infringer.
- (2)
- In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more
oftheInternetservicesoftheInternetserviceprovidertodoa restricted act without the consent of the copyright owner. Section92A: inserted (butnotyetinforce),on31October2008, by section 53
of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
92B Internet service provider liability if user infringes copyright
- (1)
- Thissectionappliesifaperson(A)infringesthecopyrightina workbyusing1ormoreoftheInternetservicesofanInternet service provider to do a restricted act without the consent of the copyright owner.
- (2)
- MerelybecauseAusestheInternetservicesoftheInternetservice provider in infringing the copyright, the Internet service provider, without more,—
- (a)
- does not infringe the copyright in the work:
- (b)
- must not be taken to have authorised A’s infringement of copyright in the work:
- (c)
- subjecttosubsection(3),mustnotbesubjecttoanycivil remedy or criminal sanction.
- (3)
- However, nothing in this section limits the right of the copyright owner to injunctive relief in relation to A’s infringement or any infringement by the Internet service provider.
- (4)
- In subsections (1) and (2), Internet services means the services referred to in the definition of Internet service provider in section 2(1). Section92B:inserted,on31October2008,by section53 oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
92C Internet service provider liability for storing infringing material
- (1)
- This section applies if—
- (a)
- anInternetserviceproviderstoresmaterialprovidedby a user of the service; and
- (b)
- the material infringes copyright in a work (other than as a result of any modification by the Internet service provider).
- (2)
- The Internet service provider does not infringe copyright in the work by storing the material unless—
- (a)
- the Internet service provider—
- (i)
- knows or has reason to believe that the material infringes copyright in the work; and
- (ii)
- does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it; or
- (b)
- theuseroftheservicewhoprovidedthematerialisacting on behalf of, or at the direction of, the Internet service provider.
- (3)
- Acourt,indeterminingwhether,forthepurposesofsubsection (2),anInternetserviceproviderknowsorhasreasontobelieve thatmaterialinfringescopyright inawork,musttakeaccount of all relevant matters, including whether the Internet service provider has received a notice of infringement in relation to the infringement.
- (4)
- An Internet service provider who deletes a user’s material or prevents access to it because the Internet service provider knows or has reason to believe that it infringes copyright in a work must, as soon as possible, give notice to the user that the material has been deleted or access to it prevented.
- (5)
- Nothinginthissectionlimitstherightofthecopyrightowner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider. Section92C:inserted,on31October2008,by section53 oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
92D Requirements for notice of infringement
A notice referred to in section 92C(3) must—
- (a)
- containtheinformationprescribedbyregulationsmade under this Act; and
- (b)
- be signed by the copyright owner or the copyright owner’s duly authorised agent.
Section92D:inserted,on31October2008,by section53 oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
92E Internet service provider does not infringe copyright by caching infringing material
- (1)
- An Internet service provider does not infringe copyright in a work by caching material if the Internet service provider—
- (a)
- does not modify the material; and
- (b)
- complieswithanyconditionsimposedbythecopyright owner of the material for access to that material; and
- (c)
- does not interfere with the lawful use of technology to obtain data on the use of the material; and
- (d)
- updates the material in accordance with reasonable industry practice.
- (2)
- However,anInternetserviceproviderdoesinfringecopyright in a work by caching material if the Internet service provider does not delete the material or prevent access to it by users as soon as possible after the Internet service provider became aware that—
- (a)
- the material has been deleted from its original source; or
- (b)
- access to the material at its original source has been prevented; or
- (c)
- a court has ordered that the material be deleted from its original source or that access to the material at its original source be prevented.
- (3)
- Nothinginthissectionlimitstherightofthecopyrightowner to injunctive relief in relation to a user’s infringement or any infringement by the Internet service provider.
- (4)
- In this section,—
cache means the storage of material by an Internet service provider that is—
- (a)
- controlled through an automated process; and
- (b)
- temporary; and
- (c)
- for the sole purpose of enabling the Internet service provider to transmit the material more efficiently to other users of the service on their request
originalsourcemeansthesourcefromwhichtheInternetservice provider copied the material that is cached. Section92E:inserted,on31October2008,by section53 oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
Subsequent dealings
93 Subsequent dealings with copies made under this Part
- (1)
- Where a copy that would otherwise be an infringing copy—
- (a)
- is either—
- (i)
- madeinaccordancewithanyoftheprovisionsof this Act referred to in subsection (2); or
- (ii)
- madeinaccordancewithanyoftheprovisionsof this Act referred to in subsection (2) and, where the provision in accordancewith which the copy is madeallows thecopytobe dealtwith, is dealt with; and
- (b)
- is subsequently dealt with,— it shall be treated as an infringing copy—
- (c)
- for the purposes of the dealing referred to in paragraph (b), unless that dealing is an authorised dealing; and
- (d)
- for the purposes of any dealing that is subsequent to thedealingreferredtoinparagraph(b),unlessthefirstmentioned dealing is an authorised dealing.
- (2)
- The provisions referred to in subsection (1) are as follows:
- (a)
- section 43A (which relates to transient reproduction of work):
- (b)
- section44 (whichrelatestocopyingforeducationalpurposesofliterary, dramatic, musical, orartisticworksor typographical arrangements):
- (c)
- section 44A (which relates to storing for educational purposes):
- (d)
- section45 (whichrelatestocopyingforeducationalpurposes of films and sound recordings):
- (e)
- section 48 (which relates to recording by educational establishments of communication works):
- (f)
- section49 (whichrelatestothingsdoneforthepurposes of an examination):
- (g)
- section 51 (which relates to copying by librarians of parts of published works):
- (h)
- section 52 (which relates to copying by librarians of articles in periodicals):
- (i)
- section 53 (which relates to copying by librarians for users of other libraries):
- (j)
- section 55 (which relates to copying by librarians or archivists to replace copies of works):
- (k)
- section 56 (which relates to copying by librarians or archivists of certain unpublished works):
- (l)
- sections56Ato56C (whichrelatetoaccesstoandcopying of works in digital format):
- (m)
- section 58 (which relates to copying by the Parliamen tary Library for members of Parliament):
- (n)
- section 69 (which relates to the provision of Braille copies of literary or dramatic works):
- (o)
- section80A (whichrelatestothedecompilationofcomputer programs):
- (p)
- section80B (whichrelatestocopyingoradaptingcomputer programs if necessary for lawful use):
- (q)
- section81A (whichrelatestocopyingsoundrecordings for private and domestic use):
- (r)
- section 83 (which relates to recording for the purposes of complaining):
- (s)
- section 84 (which relates to recording for the purposes of time shifting):
- (t)
- section 90 (which relates to recording for archival pur poses):
- (u)
- section 92C (which relates to Internet service provider liability for storing infringing materian( �/span>:
- (v)
- section 92E (which relates to Internet service provider liability for caching infringing materian( �/span>.
- (3)
- In subsection (1), the term dealt with means—
- (a)
- sold or let for hire in the course of a business or otherwise; or
- (b)
- offered or exposed for sale or hire in the course of a
business. Compare: Copyright,DesignsandPatentsAct1988ss32(5),35(3),36(5)(UK)
Section93(2): substituted, on31October2008,bysection54 oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Part 4 Moral rights
Right to be identified as author or director
94 Right to be identified as author or director
(1) Subject to section 97,—
- (a)
- the author of a literary, dramatic, musical, or artistic workthatisacopyrightworkhastherighttobeidentified as the author of the work; and
- (b)
- the director of a film that is a copyright work has the
right to be identified as the director of the work,— in the circumstances described in this section, but the right is not infringed unless it has been asserted in accordance with section 96.
- (2)
- Theauthorofaliterarywork(otherthanwordsintendedtobe sung or spoken with music) or a dramatic work has the right to be identified as the author of the work whenever—
- (a)
- theworkispublishedcommercially,performedinpublic, or communicated to the public; or
- (b)
- copies of a film or sound recording including the work are issued to the public.
- (3)
- The author of—
- (a)
- aliterarywork(otherthanwordsintendedtobesungor spoken with music); or
- (b)
- a dramatic work— fromwhichanadaptationismadehastherighttobeidentified as the author of the work from which the adaptation is made wheneveranyoftheeventsdescribedinsubsection(2)occurs in relation to the adaptation of the work.
- (4)
- Theauthorofamusicalwork,oraliteraryworkconsistingof wordsintendedtobesungorspokenwithmusic,hastheright to be identified as the author of the work whenever—
- (a)
- the work is published commercially; or
- (b)
- copies of a sound recording of the work are issued to the public; or
- (c)
- a film whose soundtrack includes the work is shown in public; or
- (d)
- copies of such a film are issued to the public.
- (5)
- The author of—
- (a)
- a musical work; or
- (b)
- aliteraryworkconsistingofwordsintendedtobesung
or spoken with music— fromwhichanadaptationismadehastherighttobeidentified as the author of the work from which the adaptation is made wheneveranyoftheeventsdescribedinsubsection(4)occurs in relation to the adaptation of the work.
- (6)
- The author of an artistic work has the right to be identified as the author of the work whenever—
- (a)
- theworkispublishedcommerciallyorexhibitedinpublic; or
- (b)
- avisualimageoftheworkiscommunicatedtothepublic; or
- (c)
- afilmincludingavisualimageoftheworkisshownin public; or
- (d)
- copies of such a film are issued to the public; or
- (e)
- in the case of a sculpture, a work of architecture in the form of a building or a model for a building, or a work of artistic craftsmanship, copies of a graphic work representing the work, or of a photograph of the work, are issued to the public.
- (7)
- The author of a work of architecture in the form of a building has the right to be identified as such on the building as constructed or, where more than 1 building is constructed to the design, on the first to be constructed.
- (8)
- The director of a film has the right to be identified as the director of the film whenever—
- (a)
- thefilmisshowninpublicorcommunicatedtothepublic; or
- (b)
- copies of the film are issued to the public. Compare: Copyright, Designs and Patents Act 1988 s 77(1)–(6), (9) (UK)
Section94(2)(a): amended,on31October2008,bysection55(1) oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section94(6)(b): amended,on31October2008,bysection55(2)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section94(8)(a): substituted,on31October2008,bysection55(3)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
95 Content of right to be identified
(1) Therightconferredby section94 onanauthorordirectorisas follows:
- (a)
- in the case of commercial publication, or the issue to the public of copies of a film or sound recording, to be identified clearly and reasonably prominently—
- (i)
- in or on each copy published commercially or issued, as the case may be; or
- (ii)
- if identification in or on each copy is not appropriate,insomeothermannerlikelytobringhisor heridentitytotheattentionofapersonacquiring a copy:
- (b)
- in the case of identification on a building, to be identifiedbyappropriatemeansvisibletopersonsenteringor approaching the building:
- (c)
- in any other case, to be identified clearly and reasonably prominently in a manner likely to bring his or her identity to the attention of a person seeing or hearing the performance, exhibition, showing, communication work, graphic work, or photograph.
(2) For the purposes of subsection (1), if the author or director, in asserting his or her right to be identified, specifies a pseudonym, initials, or some other particular form of identification, that form shall be used, but, in any other case, any reasonable form of identification may be used. Compare: Copyright, Designs and Patents Act 1988 s 77(7), (8) (UK) Section95(1)(c): amended,on31October2008,bysection56oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
96 Right must be asserted
- (1)
- A person does not infringe the right conferred by section 94 by failing, in the circumstances described in that section, to identify the author as the author of the work or to identify the directorasthedirectorofthework,asthecasemaybe,unless therighthas beenassertedunderthis sectioninsuchaway as to require that person to so identify the author or director.
- (2)
- The right may be asserted generally, or in relation to any specified circumstances,—
- (a)
- onanassignmentofcopyrightinthework,byincluding in the instrument effecting the assignment a statement thattheauthorordirectorassertsinrelationtothatwork hisorherrighttobeidentifiedastheauthorordirector, as the case may be; or
- (b)
- at any time, by instrument in writing signed by the author or director.
- (3)
- The right may be asserted in relation to the public exhibition of an artistic work—
- (a)
- byensuringthatwhentheauthororotherfirstownerof copyright parts with possession of the original, or of a copy made by him or her or under his or her direction or control, the author is identified as the author on the originalorcopy,oronaframe,mount,orotherthingto which it is attached; or
- (b)
- byincludinginanylicencebywhichtheauthororother firstownerofcopyrightauthorisesthemakingofcopies oftheworkastatementsignedbyoronbehalfoftheauthororotherfirstownerofthecopyrightthattheauthor asserts his or her right to be identified as the author in theeventofthepublicexhibitionofacopymadeinpursuance of the licence.
- (4)
- The persons bound by an assertion of the right under subsection (2) or subsection (3) are,—
- (a)
- in the case of an assertion under subsection (2)(a), the assignee and anyone claiming through the assignee, whetherornotthepersonclaimingthroughtheassignee has notice of the assertion; and
- (b)
- inthecaseofanassertionundersubsection(2)(b),anyone to whose notice the assertion is brought; and
- (c)
- in the case of an assertion under subsection (3)(a), anyone into whose hands that original or copy comes, whether or not the identification is still present or visible; and
- (d)
- in the case of an assertion under subsection (3)(b), the person to whom the licence is granted and any person into whose hands a copy made in pursuance of the licence comes, whether or not the person has notice of the assertion.
- (5)
- In an action for infringement of the right, the court shall, in consideringremedies,takeintoaccountanydelayinasserting the right. Compare: Copyright, Designs and Patents Act 1988 s 78 (UK)
97 Exceptions to right to be identified
- (1)
- The right conferred by section 94 is subject to the exceptions set out in this section.
- (2)
- The right does not apply in relation to—
- (a)
- a computer program; or
- (b)
- a computer-generated work; or
- (c)
- the design of a typeface.
- (3)
- The right is not infringed by an act that, under any of the followingprovisionsofthisAct,wouldnotinfringecopyrightin the work:
- (a)
- section 41 (which relates to incidental copying of a work):
- (b)
- section42 (whichrelatestocriticism,review,andnews reporting):
- (c)
- section 43A (which relates to transient reproduction of work):
- (d)
- section49 (whichrelatestothingsdoneforthepurposes of an examination):
- (e)
- section 59 (which relates to parliamentary and judicial proceedings):
- (f)
- section 60 (which relates to Royal commissions and statutory inquiries):
- (g)
- section 67 (which relates to acts permitted on assump tions as to expiry of copyright or death of author in relation to anonymous or pseudonymous works):
- (h)
- section81A (whichrelatestocopyingsoundrecordings for private and domestic use).
- (4)
- The right does not apply in relation to any work made for the purpose of reporting current events.
- (5)
- The right does not apply in relation to the publication, in—
- (a)
- a newspaper, magazine, or similar periodical; or
- (b)
- anencyclopedia,dictionary,yearbook,orothercollect
ive work of reference,— of a literary, dramatic, musical, or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.
(6) Therightdoesnotapplytoanyactdonebyorwiththelicence ofthecopyrightownerinrelationtoaworkinwhichcopyright
101
first vested in the author’s employer under section 21(2) or in the director’s employer under section 5(2)(b), if—
- (a)
- theauthorordirectorcannotreadilybeidentifiedatthe time of the act; or
- (b)
- in the case of a literary, dramatic, musical, or artistic work—
- (i)
- morethan2personswereinvolvedinthecreation of the work and it is impracticable at the time of the acttoidentify the respectivecontributions of each person to the work; and
- (ii)
- theauthorshavenotpreviouslybeenidentifiedin or on published copies of the work.
(7) The right does not apply in relation to—
- (a)
- a work in which Crown copyright exists under section 26 ; or
- (b)
- aworkinwhichcopyrightfirstvestedinaninternational
organisation under section 28,— unless the author or director has previously been identified as such in or on published copies of the work.
(8) The right does not apply in relation to—
- (a)
- a film that is an advertisement; or
- (b)
- a part of a film, if that part—
(i) appears incidentally in another film, or is included in a communication work; and
- (ii)
- is not a substantial part of the film. Compare: Copyright, Designs and Patents Act 1988 s 79 (UK)
Section 97(3): substituted, on 31 October 2008, by section 57(1) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section97(8)(b): substituted,on31October2008,bysection57(2)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Right to object to derogatory treatment of work
98 Right to object to derogatory treatment of work
(1) For the purposes of this section and section 99,—
- (a)
- the term treatment of a work means any addition to, deletion from, alteration to, or adaptation of the work, other than—
- (i)
- a translation of a literary or dramatic work; or
- (ii)
- an arrangement or transcription of a musical work involving no more than a change of key or register; and
- (b)
- the treatment of a work is derogatory if, whether by distortion or mutilation of the work or otherwise, the treatment is prejudicial to the honour or reputation of the author or director;—
andinthefollowingprovisionsofthissectionanyreferenceto a derogatory treatment ofaworkshallbe construedaccordingly.
(2) Subject to section 100 and 101,—
- (a)
- the author of a literary, dramatic, musical, or artistic work that is a copyright work; and
- (b)
- the director of a film that is a copyright work— hastherightnottohavehisorherworksubjectedtoaderogatory treatment. Compare: Copyright, Designs and Patents Act 1988 s 80(1), (2), (8) (UK)
99 Content of right to object to derogatory treatment
- (1)
- In the case of a literary, dramatic, or musical work, the right conferred by section 98(2) is infringed by a person who—
- (a)
- publishescommercially,performsinpublic,orcommunicatestothepublicaderogatorytreatmentofthework; or
- (b)
- issues to the public copies of—
(i) a film or sound recording of; or
- (ii)
- a film or sound recording that includes— a derogatory treatment of the work.
- (2)
- In the case of an artistic work, the right conferred by section 98(2) is infringed by a person who—
- (a)
- publishes commercially or exhibits in public a derogatorytreatmentofthework,orcommunicatestothepublicavisualimageofaderogatorytreatmentofthework; or
- (b)
- shows in public a film that includes a visual image of a derogatorytreatmentoftheworkorissuestothepublic copies of such a film; or
- (c)
- in the case of—
- (i)
- a sculpture; or
- (ii)
- aworkofarchitectureintheformofamodelfor a building; or
(iii) a work of artistic craftsmanship,— issuesto thepublic copies ofagraphic work represent- ing,orofaphotographof,aderogatorytreatmentofthe work.
- (3)
- Subsection (2) does not apply to a work of architecture in the form of a building; but where the author of such a work is identified on the building and it is the subject of derogatory treatment the author has the right to require the identification to be removed.
- (4)
- In the case of a film, the right conferred by section 98(2) is infringed by a person who—
- (a)
- shows in public, or communicates to the public, a derogatory treatment of the film; or
- (b)
- issues to the public copies of a derogatory treatment of the film; or
- (c)
- along with the film,—
- (i)
- playsinpublicorcommunicatestothepublic;or
- (ii)
- issues to the public copies of— a derogatory treatment of the film soundtrack.
- (5)
- The right conferred by section 98(2) extends to the treatment of parts of a work resulting from a previous treatment by a person other than the author or director of the work, if those partsareattributedto, orarelikelytobe regardedasthework of, the author or director.
- (6)
- The right conferred by section 98(2) is infringed by a person who, in the course of a business,—
- (a)
- possesses; or
- (b)
- sells or lets for hire; or
- (c)
- offers or exposes for sale or hire; or
- (d)
- exhibits in public or distributes— an object that is, and that the person knows or has reason to believe is, a work or a copy of a work that—
- (e)
- has been subjected to derogatory treatment; and
- (f)
- hasbeen,orislikelytobe,thesubjectofanyoftheacts describedinthissectionincircumstancesinfringingthe right conferred by section 98(2).
(7) The right conferred by section 98(2) is infringed by a person who does an act described in subsection (1) or subsection (2) or subsection (4) or subsection (6) or who authorises another person to do such an act. Compare: Copyright, Designs and Patents Act 1988 ss 80(3)–(7), 83 (UK) Section99(1)(a): amended,on31October2008,bysection58(1) oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section99(2)(a): amended,on31October2008,bysection58(2) oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section99(4)(a): substituted,on31October2008,bysection58(3)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section 99(4)(c)(i): substituted, on 31 October 2008, by section 58(4) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
100 Exceptions to right to object to derogatory treatment of literary, dramatic, musical, or artistic work
- (1)
- The right conferred by section 98(2) is, in relation to literary, dramatic, musical, or artistic works, subject to the exceptions set out in this section.
- (2)
- The right does not apply to—
- (a)
- a computer program; or
- (b)
- a computer-generated work; or
- (c)
- the design of a typeface.
- (3)
- The right does not apply in relation to the publication, in—
- (a)
- a newspaper, magazine, or similar periodical; or
- (b)
- an encyclopaedia, dictionary, yearbook, or other col
lective work of reference,— of a literary, dramatic, musical, or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.
- (4)
- Therightdoesnotapplyinrelationtoanysubsequentexploitation elsewhere, without any modification of the published version, of a work to which subsection (3) applies.
- (5)
- The right is not infringed by an act that, under section 67, would not infringe copyright.
- (6)
- The right does not apply in relation to any work made for the purpose of reporting current events.
- (7)
- Therightisnotinfringedbyanyactdoneforthepurposeof—
- (a)
- avoiding the commission of an offence; or
- (b)
- complying with a duty imposed by or under any enact
ment— if,—
- (c)
- wheretheauthorisidentifiedatthetimeoftheact,there isaclearandreasonablyprominentindication,givenat thetimeoftheactandappearingwiththeidentification, that the work has been subjected to treatment to which the author has not consented; or
- (d)
- where the author has previously been identified in or on published copies of the work, there is a clear and reasonably prominent indication, given at the time of theact,thattheworkhasbeensubjectedtotreatmentto which the author has not consented.
- (8)
- Therightdoesnotapplytoanyactdone,byorwiththelicence of the copyright owner, in relation to—
- (a)
- a work in which copyright first vested in the author’s employer under section 21(2); or
- (b)
- a work in which Crown copyright exists under section 26 ; or
- (c)
- aworkinwhichcopyrightfirstvestedinaninternational
organisation under section 28— unless the author—
- (d)
- is identified at the time of the act; or
- (e)
- haspreviouslybeenidentifiedinoronpublishedcopies of the work.
- (9)
- Where the right applies under subsection (8), the right is not infringed if,—
- (a)
- wheretheauthorisidentifiedatthetimeoftheact,there isaclearandreasonablyprominentindication,givenat thetimeoftheactandappearingwiththeidentification, that the work has been subjected to treatment to which the author has not consented; or
- (b)
- where the author has previously been identified in or on published copies of the work, there is a clear and reasonably prominent indication, given at the time of theact,thattheworkhasbeensubjectedtotreatmentto which the author has not consented.
101 Exceptions to right to object to derogatory treatment of films
- (1)
- The right conferred by section 98(2) is, in relation to films, subject to the exceptions set out in this section.
- (2)
- The right does not apply in relation to any film made for the purpose of reporting current events.
- (3)
- Therightisnotinfringedbyanyactdoneforthepurposeof,—
(a) in relation to the communication of a film,— - (i)
- complying with a duty imposed under section 4 of the Broadcasting Act 1989; or
- (ii)
- maintainingstandardsthatareconsistentwiththe observance of good taste and decency and the maintenance of law and order; or
(iii) avoiding the commission of an offence; or (iv) complying with a duty imposed by or under any enactment— (b) [Repealed] if,— - (c)
- where the director is identified at the time of the act, there is a clear and reasonably prominent indication, givenatthetimeoftheactandappearingwiththeidentification, that the film has been subjected to treatment to which the director has not consented; or
- (d)
- where the director has previously been identified in or on published copies of the work, there is a clear and reasonably prominent indication, given at the time of the act, that the film has been subjected to treatment to which the director has not consented.
- (4)
- Therightdoesnotapplytoanyactdone,byorwiththelicence of the copyright owner, in relation to—
- (a)
- a film in which copyright first vested in the director’s employer under section 5(2)(b); or
- (b)
- a film in which Crown copyright exists under section 26 ; or
- (c)
- afilminwhichcopyrightfirstvestedinaninternational
organisation under section 28— unless the director—
- (d)
- is identified at the time of the act; or
- (e)
- haspreviouslybeenidentifiedinoronpublishedcopies of the film.
- (5)
- Where the right applies under subsection (4), the right is not infringed if,—
- (a)
- where the director is identified at the time of the act, there is a clear and reasonably prominent indication, givenatthetimeoftheactandappearingwiththeidentification, that the film has been subjected to treatment to which the director has not consented; or
- (b)
- where the director has previously been identified in or on published copies of the work, there is a clear and reasonably prominent indication, given at the time of the act, that the film has been subjected to treatment to which the director has not consented.
- (6)
- Therightisnotinfringed,inrelationtothecommunicationofa filmtothepublic,iftheperson(A)communicatingthefilm—
- (a)
- makes a deletion or any deletions from the film that is or are reasonably required to enable A to—
- (i)
- followguidelinesastotheprogrammesthatmay be shown in particular time periods; or
- (ii)
- fit the film into the time scheduled to show it; or
- (b)
- communicates the film in separate parts because of its length; or
- (c)
- usesaclipofafilminanadvertisementfortheshowing
of the film. Compare: Copyright, Designs and Patents Act 1988 ss 81, 82 (UK)
Section 101(3)(a): substituted, on 31 October 2008, by section 59(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section101(3)(b): repealed,on31October2008,bysection59(1)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section101(6): substituted,on31October2008,bysection59(2)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
False attribution
102 False attribution of identity of author or director
- (1)
- In this section, the term attribution, in relation to a literary, dramatic,musical,orartisticworkorafilm,meansanexpress orimpliedstatementastotheidentityoftheauthorofthework or the director of the film.
- (2)
- A person has the right—
- (a)
- nottohavealiterary,dramatic,musical,orartisticwork falsely attributed to him or her as author; and
- (b)
- not to have a film falsely attributed to him or her as director.
- (3)
- The right conferred by subsection (2) is infringed by a person who—
- (a)
- issues to the public copies of—
- (i)
- a literary, dramatic, musical, or artistic work; or
- (ii)
- a film— in or on which there is a false attribution; or
- (b)
- exhibits in public—
- (i)
- an artistic work; or
- (ii)
- a copy of an artistic work,—
in or on which there is a false attribution,— knowing, or having reason to believe, that the attribution is false.
- (4)
- A person (A) infringes a right under subsection (2) if—
- (a)
- Aperformsaliterary,dramatic,ormusicalworkinpublic, or shows a film to the public, or communicates the work or film to the public; and
- (b)
- the work or film is accompanied by a false attribution; and
- (c)
- A knows or has reason to believe that the attribution is false.
- (5)
- The right conferred by subsection (2) is infringed by—
- (a)
- the issue to the public; or
- (b)
- the public display— of material containing a false attribution in connection with any of the acts referred to in subsection (3) or subsection (4).
- (6)
- The right conferred by subsection (2) is infringed by a person who, in the course of a business,—
- (a)
- possesses a copy of—
- (i)
- a literary, dramatic, musical, or artistic work; or
- (ii)
- a film— in or on which there is a false attribution; or
- (b)
- sells or lets for hire, offers or exposes for sale or hire, exhibits in public, or distributes a copy of—
- (i)
- a literary, dramatic, musical, or artistic work; or
- (ii)
- a film— in or on which there is a false attribution; or
- (c)
- inthecaseofanartisticwork,possessestheworkwhen there is a false attribution in or on the work; or
- (d)
- sells, or lets for hire, offers or exposes for sale or hire, distributes, or exhibits in public an artistic work in or on which there is a false attribution,—
knowing, or having reason to believe, that there is such an attribution and that the attribution is false.
(7) The right conferred by subsection (2) is infringed by a person who does an act described in this section or who authorises another person to do such an act. Compare: 1962 No 33 s 62(1), (2); Copyright, Designs and Patents Act 1988
s 84(1)–(5), (7) (UK)
Section102(4): substituted,on31October2008,bysection60oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
103 False representation as to literary, dramatic, or musical work
- (1)
- In this section, the term representation, in relation to a literary, dramatic, or musical work, means an express or implied statement as to the work being an adaptation of a work by a particular author.
- (2)
- Apersonhastherightnottohavealiterary,dramatic,ormusical work falsely represented as being an adaptation of a work of which the person is the author.
- (3)
- The right conferred by subsection (2) is infringed by a person whoissuestothepubliccopiesofaliterary,dramatic,ormusicalworkinoronwhichthereisafalserepresentation,knowing or having reason to believe that the representation is false.
- (4)
- Aperson(A)infringestherightconferredbysubsection(2)if Aperformsinpublic,orcommunicatestothepublic,aliterary, dramatic, or musical work, accompanied by a false representation,andAknowsorhasreasontobelievethattherepresentation is false.
- (5)
- The right conferred by subsection (2) is infringed by—
- (a)
- the issue to the public; or
- (b)
- the public display—
of material containing a false representation in connection withanyoftheactsmentionedinsubsection(3)orsubsection (4).
(6) The right conferred by subsection (2) is infringed by a person who, in the course of a business,—
- (a)
- possessesacopyofaliterary,dramatic,ormusicalwork in or on which there is a false representation; or
- (b)
- sells or lets for hire, offers or exposes for sale or hire, distributes, or exhibits in public a copy of a literary, dramatic,ormusicalworkinoronwhichthereisafalse representation,—
knowing, orhaving reasontobelieve, thatthere is such a representation and that the representation is false.
(7) The right conferred by subsection (2) is infringed by a person who does an act described in this section or who authorises another person to do such an act. Compare: 1962 No 33 s 62(3); Copyright, Designs and Patents Act 1988
s 84(8)(a) (UK)
Section103(4): substituted,on31October2008,bysection61oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
104 False representations as to artistic work
- (1)
- In this section, the term representation means an express or impliedstatementastoamatterreferredtoinparagraph(a)or paragraph (b) or paragraph (c) of subsection (2).
- (2)
- The author of an artistic work has the right—
- (a)
- nottohavetheworkfalselyrepresentedastheunaltered workoftheauthoriftheworkhasbeenalteredafterthe author parted with possession of the work; and
- (b)
- not to have a copy of a work that has been altered after the author parted with possession of the work falsely representedasacopyofanunalteredworkoftheauthor; and
- (c)
- nottohaveacopyofanartisticworkfalselyrepresented asbeingacopymadebytheauthoroftheartisticwork.
- (3)
- The right conferred by subsection (2) is infringed by a person who exhibits in public an artistic work, or a copy of an artistic work, as the case may be, in or on which there is a false
representation, knowing or having reason to believe that the representation is false.
- (4)
- The right conferred by subsection (2) is infringed by—
- (a)
- the issue to the public; or
- (b)
- the public display— of material containing a false representation in connection with any act referred to in subsection (3).
- (5)
- The right conferred by subsection (2) is infringed by a person who, in the course of a business,—
- (a)
- possessesanartisticworkoracopyofanartisticwork, as the case may be, in or on which there is a false representation or when there is a false representation in or on the work or copy; or
- (b)
- sells or lets for hire, offers or exposes for sale or hire, distributes, or exhibits in public an artistic work or a copy of an artistic work, as the case may be, in or on which there is a false representation or when there is a false representation in or on the work or copy,—
knowing or having reason to believe there is such a representation and that the representation is false.
(6) The right conferred by subsection (2) is infringed by a person who does an act described in this section or who authorises another person to do such an act. Compare: 1962 No 33 s 62(4), (6); Copyright, Designs and Patents Act 1988
s 84(6), (8)(b) (UK)
Right to privacy of certain photographs andfilms
105 Right to privacy of certain photographs and films
- (1)
- A person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film has, where copyright exists in the resulting work but is owned by some other person, the right—
- (a)
- nottohavecopiesoftheworkissuedtothepublic;and
- (b)
- nottohavetheworkexhibitedorshowninpublic;and
- (c)
- not to have the work communicated to the public.
- (2)
- Subjecttosubsection(3),therightconferredbysubsection(1) isinfringedbyapersonwhodoesanactofthekinddescribed
inparagraph(a)orparagraph(b)orparagraph(c)ofsubsection (1).
- (3)
- Therightconferredbysubsection(1)isnotinfringedbyanact that, under any of the following provisions of this Act, would not infringe copyright in the work:
- (a)
- section 41 (which relates to the incidental copying of a workinanartisticwork,film,orcommunicationwork):
- (b)
- section 59 (which relates to parliamentary and judicial proceedings):
- (c)
- section 60 (which relates to Royal commissions and statutory inquiries):
- (d)
- section 66 (which relates to acts done under statutory authority):
- (e)
- section 67 (which relates to acts permitted on assump tions as to expiry of copyright or death of the author in relation to anonymous or pseudonymous works).
(4) The right conferred by subsection (1) is infringed by a person whodoesanactdescribedinsubsection(2)orwhoauthorises another person to do such an act. Compare: Copyright, Designs and Patents Act 1988 s 85 (UK) Section 105(1)(c): substituted, on 31 October 2008, by section 62(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section105(3)(a): amended,on31October2008,bysection62(2)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Supplementary provisions
106 Duration of rights
- (1)
- The rights conferred by the following provisions of this Act expire when the copyright in any work that is the subject of the right expires:
- (a)
- section 94 (which relates to the right to be identified as author or director):
- (b)
- section98 (whichrelatestotherighttoobjecttoderogatory treatment of a work):
- (c)
- section105 (whichrelatestotherighttoprivacyofcertain photographs and films).
- (2)
- The rights conferred by the following provisions of this Act expire at the end of the period of 20years from the endof the
calendar year in which the person who is entitled to the right dies:
- (a)
- section 102 (which relates to false attribution of the identity of an author or director):
- (b)
- section103 (whichrelatestoafalserepresentationasto literary, dramatic, or musical works):
- (c)
- section104 (whichrelatestofalserepresentationsasto artistic works).
Compare: 1962 No 33 s 62(5); Copyright, Designs and Patents Act 1988 s 86 (UK)
107 Consent and waiver of rights
- (1)
- It is not an infringement of any of the rights conferred by this Part to do any act to which the person who is entitled to the right has consented.
- (2)
- Any of the rights conferred by this Part may be waived by instrument in writing signed by the person waiving the right.
- (3)
- A waiver given pursuant to subsection (2)—
- (a)
- mayrelatetoaspecificwork,ortoworksofaspecified description that are in existence, in progress, or about to be commenced; and
- (b)
- shall state the rights to which the waiver relates; and
- (c)
- may be expressed to be subject to revocation; and
- (d)
- ifmadeinfavouroftheownerorprospectiveownerof thecopyright inthework or worksto whichthewaiver relates, shall be presumed to extend to his or her licensees and successors in title unless a contrary intention is expressed.
Compare: Copyright, Designs and Patents Act 1988 s 87 (UK)
108 Applicationofprovisionstojointworksotherthanfilms
- (1)
- This section does not apply to a film.
- (2)
- Aconsentorwaiverunder section107 byonejointauthordoes not affect the rights of the other joint authors.
- (3)
- The right conferred by section 94 is, in the case of a work of jointauthorship,arightofeachjointauthortobeidentifiedas ajointauthor,andmustbeassertedinaccordancewith section 96 by each joint author in relation to himself or herself.
- (4)
- The right conferred by section 98 is, in the case of a work of joint authorship, a right of each joint author.
- (5)
- Therightconferredby section102 isinfringed,inthecircumstances described in that section,—
- (a)
- byanyfalsestatementastotheauthorshipofaworkof joint authorship; and
- (b)
- bythefalseattributionofjointauthorshipinrelationto
a work of sole authorship;— and sucha falseattributioninfringestheright ofevery person to whom authorship of any description is, whether rightly or wrongly, attributed.
- (6)
- Therightconferredby section103 isinfringed,inthecircumstances described in that section, by any false representation as to an adaptation of a work of joint authorship, and such a false representation infringes the right of each joint author.
- (7)
- Therightconferredby section104 isinfringed,inthecircumstances described in that section, by any false representation as to a matter referred to in paragraph (a) or paragraph (b) or paragraph(c)ofsubsection(2)ofthatsection,andsuchafalse representation infringes the right of each joint author.
- (8)
- The right conferred by section 105 is, in the case of a photo graphmadeinpursuanceofajointcommission,arightofeach person who commissioned the taking of the photograph, so that—
- (a)
- therightofeachpersonissatisfiedifheorsheconsents to the act in question; and
- (b)
- awaiverunder section107 byonepersondoesnotaffect
the rights of the other persons. Compare: Copyright, Designs and Patents Act 1988 s 88(1)–(4), (6) (UK)
109 Application of provisions to joint works that are films
(1) Where a film was, or is alleged to have been, jointly directed,—
- (a)
- a consent or waiver under section 107 by one joint dir ector does not affect the rights of the other joint directors; and
- (b)
- therightconferredby section94 isarightofeachjoint director to be identified as a joint director, and must
115
be asserted in accordance with section 96 by each joint director in relation to himself or herself; and
- (c)
- therightconferredby section98 isarightofeachjoint director; and
- (d)
- the right conferred by section 102 is infringed, in the circumstances described in that section,—
- (i)
- by any false statement as to the directorship of the film; or
- (ii)
- by the false attribution of joint directorship in
relation to a film of sole directorship;— and such a false attribution infringes the right of every person to whom directorship of any description is, whether rightly or wrongly, attributed.
- (2)
- For the purposes of subsection (1), a film is jointly directed if the film is made by the collaboration of 2 or more directors and the contribution of each director is not distinct from that of the other director or directors.
- (3)
- Therightconferredby section105 is,inthecaseofafilmmade inpursuanceofajointcommission,arightofeachpersonwho commissioned the making of the film, so that—
- (a)
- therightofeachpersonissatisfiedifheorsheconsents to the act in question; and
- (b)
- awaiverunder section107 byonepersondoesnotaffect
the rights of the other persons. Compare: Copyright, Designs and Patents Act 1988 s 88(5) (UK)
110 Application of provisions to parts of works
- (1)
- The rights conferred by section 94 or section 105 apply in re lation to the whole or any substantial part of a work.
- (2)
- The rights conferred by the following provisions of this Act apply in relation to the whole or any part of a work:
- (a)
- section98 (whichrelatestotherighttoobjecttoderogatory treatment of a work):
- (b)
- section 102 (which relates to false attribution of the identity of an author or director):
- (c)
- section103 (whichrelatestoafalserepresentationasto literary, dramatic, or musical works):
- (d)
- section104 (whichrelatestofalserepresentationsasto
artistic works). Compare: Copyright, Designs and Patents Act 1988 s 89 (UK)
Part 5 Dealing with rights in copyright works
Licences to deal with copyright works
111 Licences
- (1)
- A licence granted by a copyright owner is binding on every successor in title to that person’s interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a personderivingtitlefromsuchapurchaser;andreferencesinthis Act to doing anything—
- (a)
- with,orwithout,thelicenceofthecopyrightowner;or
- (b)
- other than pursuant to a copyright licence— shall be construed accordingly.
- (2)
- The licensee under an exclusive licence has the same rights againstasuccessorintitlewhoisboundbythelicenceasthat licensee has against the copyright owner. Compare: 1962 No 33 s 56(4); Copyright, Designs and Patents Act 1988
ss 90(4), 92(2) (UK)
112 Warranty implied in certain licences
- (1)
- This section applies to a licence that has been granted for—
- (a)
- the performance or communication to the public of a copyright work that is a literary, dramatic, or musical work or a sound recording or film; or
- (b)
- theinclusionofacopyrightworkthatisanartisticwork in a performance or a communication work.
- (2)
- A warranty is implied in the licence that the person by whom or on whose behalf the licence is granted is—
- (a)
- theownerofthecopyrightinthework,soundrecording, or film that is the subject of the licence; or
- (b)
- authorised to grant the licence by the copyright owner.
Section 112: substituted, on 31 October 2008, by section 63 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
112A Damages for falsely claiming copyright ownership or licence
- (1)
- This section applies if—
- (a)
- aperson(A)falselyclaimstobe,ortohavebeengranted alicenceby or on behalf of, the owner of the copyright in a literary, dramatic, musical, or an artistic work or a sound recording or film; and
- (b)
- A has threatened or commenced proceedings for preventing, or claiming damages in respect of, a performanceorcommunicationtothepublicofthework,sound recording, or film (which in this section is called the event); and
- (c)
- as a result of the threat or commencement of proceedings, the event has not taken place.
- (2)
- Acourtmayawarddamagestocompensateanyofthefollowing persons for any loss sustained because the event did not take place:
- (a)
- in the case of a threat of proceedings, the person to whom A made the threat:
- (b)
- inthecaseofthecommencementofproceedings,adefendant:
- (c)
- any other person interested in the event.
Section 112A: inserted, on 31 October 2008, by section 63 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
112B Provisions of sections 112 and 112A to have effect no matter what licence says
Theprovisionsof sections112 and 112A haveeffectnomatter what any licence may say, and extend to all licences whether granted before or after the commencement of this Act. Section 112B: inserted, on 31 October 2008, by section 63 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
Transmission of copyright
113 Transmission of copyright
- (1)
- Copyright is transmissible, as personal or moveable property, by—
- (a)
- assignment; or
- (b)
- testamentary disposition; or
- (c)
- operation of law.
- (2)
- A transmission of copyright may be partial, that is, limited so as to apply—
- (a)
- to 1 or more, but not all, of the things the copyright owner has the exclusive right to do:
- (b)
- to part, but not the whole, of the period for which the copyright is to exist.
Compare: 1962 No 33 s 56(1), (2); Copyright, Designs and Patents Act 1988 s 90(1), (2) (UK)
114 Assignment
Anassignmentofcopyrightisnoteffectiveunlessitisinwriting signed by or on behalf of the assignor. Compare: 1962No33s56(3);Copyright,DesignsandPatentsAct1988s90(3)
(UK)
115 Copyright to pass under will with unpublished works
Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—
- (a)
- an original document or other material thing recording or embodying a literary, dramatic, musical, or artistic workthatwasnotpublishedbeforethedeathofthetestator; or
- (b)
- anoriginalmaterialthingcontainingasoundrecording or film that was not published before the death of the testator,—
thebequestshall,unlessacontraryintentionisindicatedinthe testator’s will or a codicil to that will, be construed as including the copyright in the work in so far as the testator was the copyright owner immediately before his or her death. Compare: 1962No33s59;Copyright,DesignsandPatentsAct1988s93(UK)
116 Future copyright
- (1)
- Futurecopyrightshallbecapableofbeingassigned,whollyor partially,inthesamemannerandinallrespectsasifthecopyrightweretheninexistence,andoncomingintoexistencethe copyrightshallvestintheassigneeortheassignee’ssuccessor in title accordingly.
- (2)
- Sections 111(1), 113(2), and 114 apply to future copyright in the same manner as they apply to existing copyright.
- (3)
- A licence granted by a person to whom future copyright has been assigned is binding on every successor in title to that person’s interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive)ofthelicenceorapersonderivingtitlefromsuch a purchaser; and references in this Act to doing anything—
- (a)
- with,orwithout,thelicenceofthecopyrightowner;or
- (b)
- other than pursuant to a copyright licence— shall be construed accordingly. Compare: 1962No33s57;Copyright,DesignsandPatentsAct1988s91(UK)
117 Righttomakeconditionsinrespectofcertainunpublished works
- (1)
- This section applies where the owner of the copyright in an unpublished literary, dramatic, or musical work, or an unpublished artistic work other than a photograph, has, whether beforeorafterthecommencementofthisAct,transferredorbequeathed to an institution—
- (a)
- the property in or possession of the manuscript of the literary, dramatic, or musical work or a copy of the manuscript; or
- (b)
- the property in or possession of the artistic work,— subjecttoanyconditionsprohibiting,restricting,orregulating publication of the work for a specified period or without any limit on the period.
- (2)
- While the manuscript, copy, or work is in the possession of theinstitution,anypublicationoftheworkinbreachofsucha condition by—
- (a)
- theinstitutionowningthemanuscript,copy,orwork;or
- (b)
- the institution having possession of the manuscript, copy, or work; or
- (c)
- any other person— shall,notwithstandingthatthecopyrightintheworkmayhave expired,beactionableasifcopyrightcontinuedtoexistinthe work and the publication were an infringement of the copyright.
- (3)
- Nothinginthissectionappliestoanypublicationwiththeconsentofthepersonwhowouldbetheownerofthecopyrightin the work if the copyright had not expired.
- (4)
- In this section, the term institution means the Crown, a local body, a prescribed library or archive within the meaning of section50 ,aninstitutionwithinthemeaningof section159 of theEducationAct1989,oranyotherinstitutionprescribedby regulations made under this Act. Compare: 1962 No 33 s 58
Moral rights
118 Moral rights not assignable The rights conferred by Part 4 are not assignable. Compare: Copyright, Designs and Patents Act 1988 s 94 (UK)
119 Transmission of moral rights on death
- (1)
- Onthedeathofapersonentitledtotherightconferredby sec tion 94 or section 98 or section 105,—
- (a)
- the right passes to such person as he or she may by testamentary disposition specifically direct; or
- (b)
- ifthereisnosuchdirectionbutthecopyrightinthework in question forms part of the estate, the right passes to the person to whom the copyright passes; or
- (c)
- if or to the extent that the right does not pass under paragraph (a) or paragraph (b), the right is exercisable by the personal representatives.
- (2)
- Where—
- (a)
- undersubsection(1)(b)anyrightpassestothepersonto whom the copyright passes; and
- (b)
- thecopyrightpassesinparttoonepersonandinpartto
another,— the right shall pass in the same manner as the copyright.
(3) Where under paragraph (a) or paragraph (b) of subsection (1) a right becomes exercisable by more than 1 person,—
- (a)
- inthecaseoftherightconferredby section94 ,theright may be asserted by any of those persons; and
- (b)
- inthecaseoftherightconferredby section98 orsection 105 ,therightisexercisablebyeachofthosepersonsand
121
is satisfied in relation to any of those persons if one of them consents to the treatment or act in question; and
(c) any waiver of the right in accordance with section 107 byoneofthosepersonsdoesnotaffecttherightsofthe others.
- (4)
- A consent or waiver previously given or made binds any person to whom a right passes under subsection (1).
- (5)
- Anyinfringementafteraperson’sdeathoftherightconferred by section 102 or section 103 or section 104 is actionable by his or her personal representatives.
- (6)
- Anydamagesrecoveredbypersonalrepresentativesinrespect ofaninfringementafterthedeathofapersonentitledtoaright conferred by Part 4 shall devolve as part of the estate as if the right of action had existed and been vested in the person immediately before his or her death. Compare: Copyright, Designs and Patents Act 1988 s 95 (UK)
Part 6 Remedies for infringement
Rights and remedies of copyright owner
120 Infringement actionable by copyright owner
- (1)
- An infringement of copyright is actionable by the copyright owner.
- (2)
- Inproceedingsforinfringementofcopyright,allsuchreliefby way of damages, injunctions, accounts, or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.
- (3)
- This section has effect subject to the following provisions of this Part. Compare: 1962 No 33 s 24(1); Copyright, Designs and Patents Act 1988 s 96
(UK)
121 Provisions as to damages in infringement proceedings
- (1)
- Where, in proceedings for infringement of copyright, it is proved or admitted that at the time of the infringement the defendant did not know, and had no reason to believe, that copyrightexistedintheworktowhichtheproceedingsrelate, the plaintiff is not entitled to damages but, without prejudice
to the award of any other remedy, is entitled to an account of profits.
- (2)
- In proceedings for infringement of copyright, the court may, having regard to all the circumstances and in particular to—
- (a)
- the flagrancy of the infringement; and
- (b)
- any benefit accruing to the defendant by reason of the
infringement,— award such additional damages as the justice of the case may require.
(3) In proceedings for infringement of copyright in respect of the construction of a building, no injunction or other order shall be made—
- (a)
- aftertheconstructionofthebuildinghasbeenbegun,so as to prevent the building from being completed; or
- (b)
- so as to require the building, in so far as it has been constructed, to be demolished.
Compare: 1962 No 33 s 24(2)–(4); Copyright, Designs and Patents Act 1988 s 97 (UK)
122 Order for delivery up in civil proceedings
(1) Where a person—
- (a)
- has an infringing copy of a work in that person’s possession, custody, or control in the course of a business; or
- (b)
- has in that person’s possession, custody, or control an object specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that the object has been or is to be used to make infringing copies,—
theownerofthecopyright intheworkmay applytothecourt for an order that the infringing copy or object be delivered up to the copyright owner or such other person as the court may direct.
- (2)
- No order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 134.
- (3)
- Apersontowhomaninfringingcopyorotherobjectisdeliveredup inpursuanceofanorderunder thissectionshall,if an order under section 134 is not made, retain the copy or object
123
pending the making of an order, or the decision not to make an order, under that section.
- (4)
- Notwithstandinganyruleofcourt,anordermaybemadepursuanttothissectiononanex parte applicationbythecopyright owner where service of notice of the application would cause unduedelayorotherseriousdetrimenttothecopyrightowner.
- (5)
- Nothing in this section affects any other power of the court. Compare: Copyright, Designs and Patents Act 1988 s 99 (UK)
Rights and remedies of exclusive licensee
123 Rights and remedies of exclusive licensee
- (1)
- Anexclusivelicenseehas,exceptagainstthecopyrightowner, thesamerightsandremediesunder sections120 , 121 ,and 122 inrespectofmattersoccurringafterthegrantofthelicenceas if the licence were an assignment.
- (2)
- The rights and remedies of the exclusive licensee under sec tions120 , 121 ,and 122 areconcurrentwiththoseofthecopyright owner.
- (3)
- In proceedings brought by an exclusive licensee pursuant to this section, a defendant may avail himself or herself or itself of any defence that would have been available if theproceedings had been brought by the copyright owner. Compare: 1962 No 33 s 26(2)(a), (b), (4); Copyright, Designs and Patents Act
1988 s 101 (UK)
124 Exercise of concurrent rights
- (1)
- Where proceedings for infringement of copyright brought by thecopyrightowneroranexclusivelicenseerelate(whollyor partly) to an infringement in respect of which the copyright ownerandtheexclusivelicenseehaveconcurrentrightsofaction,thecopyrightowneror,asthecasemaybe,theexclusive licenseemaynot,withouttheleaveofthecourt,proceedunless theotheriseitherjoinedasaplaintifforaddedasadefendant.
- (2)
- A copyright owner or exclusive licensee who is joined as a plaintiff or added as a defendant pursuant to subsection (1) is not liable for any costs in the proceedings unless that person takes part in the proceedings.
- (3)
- Subsections(1)and(2)donotaffectthegrantingofinterlocutoryreliefonanapplicationbyacopyrightownerorexclusive licensee alone.
- (4)
- Whetherornotthecopyrightownerandtheexclusivelicensee are both parties to proceedings for infringement of copyright that relate (wholly or partly) to an infringement in respect of which they have or had concurrent rights of action,—
- (a)
- the court shall, in assessing damages, take into account—
- (i)
- the terms of the licence; and
- (ii)
- any pecuniary remedy already awarded or available to either the copyright owner or the exclusive licensee in respect of the infringement; and
- (b)
- no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of either the copyright owner ortheexclusivelicenseeinrespectoftheinfringement; and
- (c)
- the court shall, if an account of profits is directed, apportiontheprofitsbetweenthecopyrightownerandthe exclusive licensee in such manner as the court considers just, subject to any agreement between them.
- (5)
- The copyright owner shall notify any exclusive licensee hav ing concurrent rights before applying for an order under sec tion 122; and the court may on the application of the licensee make such order under that section as it thinks fit having regard to the terms of the licence. Compare: 1962 No 33 s 26(3)–(8); Copyright, Designs and Patents Act 1988
s 102 (UK)
Rights and remedies in relation to moral rights
125 Infringement of moral rights actionable
- (1)
- Aninfringementofarightconferredby Part4 isactionableby the person entitled to the right.
- (2)
- In proceedings for infringement of a right conferred by Part 4 , relief by way of damages and injunction is available to the plaintiff.
- (3)
- Inproceedingsforinfringementoftherightconferredby sec tion 98(2), the court may, if it thinks it is an adequate remedy inthecircumstances, grantan injunction on termsprohibiting thedoingofanyactunlessadisclaimerismade,insuchterms and insuch mannerasmay beapprovedbythecourt, dissociating the author or director from the treatment of the work. Compare: 1962No33 s62(8); Copyright,Designs and Patents Act 1988s103
(UK)
Presumptions
126 Presumptions relevant to literary, dramatic, musical, or artistic works
- (1)
- The presumptions set out in subsections (2) to (5) apply in proceedings brought under this Act with respect to a literary, dramatic, musical, or artistic work.
- (2)
- Whereanamepurportingtobethatoftheauthorappearedon copiesofaliterary,dramatic,ormusicalworkaspublishedor onanartisticworkwhenitwasmade,thepersonwhosename appeared shall be presumed, until the contrary is proved,—
- (a)
- to be the author of the work; and
- (b)
- to have made the work in circumstances not falling within subsections (2) and (3) of section 21, or section 26 , or section 28.
- (3)
- In the case of a work alleged to be a work of joint authorship, subsection (2) applies in relation to each person alleged to be one of the authors.
- (4)
- Where no name purporting to be that of the author appeared oncopiesoftheworkaspublishedorontheworkwhenitwas made, but—
- (a)
- the work qualifies for copyright under section 19; and
- (b)
- a name purporting to be that of the publisher appeared
on copies of the work as first published,— the person whose name appeared shall be presumed, until the contraryisproved,torepresenttheauthorandshallbeentitled to protect and enforce the author’s rights.
(5) If the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it shall be presumed, until the contrary is proved,—
- (a)
- that the work is an original work; and
- (b)
- that the plaintiff’s allegations as to what was the first publication of the work and as to the country of first publication are correct.
Compare: 1962 No 33 s 27(2)–(5); Copyright, Designs and Patents Act 1988 s 104 (UK)
127 Presumptions relevant to certain artistic works
- (1)
- This section applies to any proceedings for infringement of copyrightinanyartisticworkofwhichcopiesin3dimensions have been issued to the public by or with the licence of the owner of the copyright in that artistic work.
- (2)
- Inanyproceedingstowhichthissectionapplies,wherecopies asissuedtothepublic,whetherinNewZealandorinanyother country,bearaclearandlegiblelabelorothermarkindicating the following claims, namely,—
- (a)
- that copyright existed in the artistic work of which the copy was made; and
- (b)
- that a named person was the owner of the copyright in the artistic work at the time the copy was issued to the public; and
- (c)
- that a named person was the exclusive licensee of the copyright owner at the time the copy was issued to the public; and
- (d)
- thatthecopywasfirstissuedtothepublicinaspecified
year,— it shall be presumed until the contrary is proved—
- (e)
- that at all material times the defendant had knowledge of each of the claims specified in paragraphs (a) to (d); and
- (f)
- that the copy was first made available to the public in the year specified.
- (3)
- For the purposes of subsection (2), the symbol “©” on a label or other mark shall be taken to indicate that copyright is claimed to exist in the artistic work of which the copy so labelled or marked is made.
- (4)
- Nothing in this section limits or affects section 126. Compare: 1962 No 33 s 27A; 1985 No 134 s 7(1)
128 Presumptions relevant to computer programs, sound recordings, and films
(1) In proceedings brought under this Act with respect to a computer program, where copies of the program are issued to the public in electronic form bearing a statement—
- (a)
- that a named person was the owner of copyright in the program at the date of the issue of the copies in electronic form; or
- (b)
- thatcopiesoftheprogramwerefirstissuedtothepublic inelectronicforminaspecifiedyearorthattheprogram was first published in a specified country,—
thestatementshallbeadmissibleasevidenceofthefactsstated andshallbepresumedtobecorrectuntilthecontraryisproved.
(2) InproceedingsbroughtunderthisActwithrespecttoasound recording,wherecopiesoftherecordingasissuedtothepublic bear a label or other mark stating—
- (a)
- that a named person was the owner of copyright in the recording at the date of the issue of the copies; or
- (b)
- thattherecordingwasfirstpublishedinaspecifiedyear
or in a specified country,— the label or mark shall be admissible as evidence of the facts statedandshallbepresumedtobecorrectuntilthecontraryis proved.
(3) In proceedings brought under this Act with respect to a film, where copies of the film as issued to the public bear a statement—
- (a)
- that a named person was the author or director of the film; or
- (b)
- that a named person was the owner of copyright in the film at the date of the issue of the copies; or
- (c)
- thatthefilmwasfirstpublishedinaspecifiedyearorin
a specified country,— thestatementshallbeadmissibleasevidenceofthefactsstated andshallbepresumedtobecorrectuntilthecontraryisproved.
- (4)
- The presumptions created in subsections (1) to (3) apply in proceedings relating to an infringement alleged to have occurred before the date on which the copies were issued to the public in the same manner as they apply in proceedings relat
ing to an infringement alleged to have occurred after the date on which the copies were issued to the public.
- (5)
- In proceedings brought under this Act with respect to a film, where the film as shown in public or communicated to the public bears a statement—
- (a)
- that a named person was the author or director of the film; or
- (b)
- that a named person was the owner of copyright in the
film immediately after it was made,— thestatementshallbeadmissibleasevidenceofthefactsstated andshallbepresumedtobecorrectuntilthecontraryisproved.
(6) Thepresumptioncreatedbysubsection(5)appliesinproceedings relating to an infringement alleged to have occurred before the date on which the film was shown in public or communicatedtothepublicinthesamemannerasitappliesinproceedings relating to an infringement alleged to have occurred after the date on which the film was shown in public or communicated to the public. Compare: 1962No33 s27(7); Copyright,Designs and Patents Act 1988s105
(UK)
Section 128(5): amended, on 31 October 2008, by section 64(1) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section 128(6): amended, on 31 October 2008, by section 64(2) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
129 Presumptions relevant to works subject to Crown copyright In proceedings brought under this Act with respect to a literary, dramatic, or musical work in which Crown copyright exists, where there appears on printed copies of the work a statement of the year in which the work was first published commercially, that statement shall be admissible as evidence of the fact stated and shall be presumed to be correct until the contrary is proved. Compare: Copyright, Designs and Patents Act 1988 s 106 (UK)
130 Unjustified proceedings
(1) Where a person brings proceedings alleging an infringement of copyright or a contravention of section 226A, a court may, ontheapplicationofanypersonagainstwhomtheproceedings are brought,—
- (a)
- makeadeclarationthatthebringingofproceedingswas unjustified:
- (b)
- makeanorderforthepaymentofdamagesforanyloss suffered by the person against whom the proceedings are brought.
- (2)
- A court shall not grant relief under this section if the person whobroughttheproceedingsprovesthattheactsinrespectof which proceedings were brought constituted, or would have constitutediftheyhadbeendone,aninfringementofthecopyright concerned.
- (3)
- Nothing in this section makes a barrister or solicitor of the High Court of New Zealand liable to any proceedings under thissectioninrespectofanyactdoneinhisorherprofessional capacity on behalf of a client. Compare: 1994 No 116 s 40; Copyright, Designs and Patents Act 1988 s 253
(UK)
Section 130(1): amended, on 31 October 2008, by section 65 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Offences
131 Criminal liability for making or dealing with infringing objects
(1) Every person commits an offence against this section who, other than pursuant to a copyright licence,—
- (a)
- makes for sale or hire; or
- (b)
- imports into New Zealand otherwise than for that person’s private and domestic use; or
- (c)
- possesses in the course of a business with a view to committing any act infringing the copyright; or
- (d)
- in the course of a business,—
- (i)
- offers or exposes for sale or hire; or
- (ii)
- exhibits in public; or
(iii) distributes; or
- (e)
- inthecourseofabusinessorotherwise,sellsorletsfor hire; or
- (f)
- distributesotherwisethaninthecourseofabusinessto such an extent as to affect prejudicially the copyright owner—
an object that is, and that the person knows is, an infringing copy of a copyright work.
- (2)
- Every person commits an offence against this section who—
- (a)
- makes an object specifically designed or adapted for making copies of a particular copyright work; or
- (b)
- has such an object in that person’s possession,— knowingthattheobjectistobeusedtomakeinfringingcopies for sale or hire or for use in the course of a business.
- (3)
- Subject to subsection (4), every person commits an offence against this section who—
- (a)
- causes a literary, dramatic, or musical work to be performed, where that performance infringes copyright in that work; or
- (b)
- causes a sound recording or film to be played in public or shown in public, where that playing or showing infringes copyright in that sound recording or film,—
knowingthatcopyrightintheworkor,asthecaserequires,the sound recording or film would be infringed by that performance or, as the case requires, that playing or that showing.
- (4)
- Nothinginsubsection(3)appliesinrespectofinfringementof copyright by the reception of a communication work.
- (5)
- Every person who commits an offence against this section is liable on conviction—
- (a)
- in the case of an offence against subsection (1), to a finenotexceeding$10,000foreveryinfringingcopyto which the offence relates, but not exceeding $150,000 in respect of the same transaction, or to imprisonment for a term not exceeding 5 years:
- (b)
- in the case of an offence against subsection (2) or subsection (3), to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 5 years.
- (6)
- Where any person is convicted of an offence against this section in circumstances where that offence involves the making of profit or gain, that offence shall be deemed to have caused a loss of property for the purposes of section 32(1)(a) of the Sentencing Act 2002, and the provisions of that Act relating
to the imposition of the sentence of reparation shall apply accordingly.
- (7)
- Sections 126 to 129 (which relate to presumptions) do not apply to proceedings for an offence against this section.
(8) [Repealed]
Compare: 1962 No 33 s 28(1)–(3), (5); 1990 No 71 s 3; Copyright, Designs and Patents Act 1988 s 107 (UK)
Section 131(4): amended, on 31 October 2008, by section 66 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 131(5): substituted, on 19 May 1998, by section 6(1) of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).
Section 131(5): amended, on 20 August 2003, by section 201 of the Trade Marks Act 2002 (2002 No 49).
Section 131(5)(a): amended, on 20 August 2003, by section 201 of the Trade Marks Act 2002 (2002 No 49).
Section 131(5)(b): amended, on 20 August 2003, by section 201 of the Trade Marks Act 2002 (2002 No 49).
Section 131(6): amended, on 30 June 2002, by section 186 of the Sentencing Act 2002 (2002 No 9).
Section 131(8): repealed, on 19 May 1998, by section 6(2) of the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998 (1998 No 20).
131A Time for laying information Despite section 14of the Summary Proceedings Act 1957, an information in respect of an offence against section 131 may be laid at any time within 3 years of the time when the matter of the information arose. Section131A:inserted,on20August2003,by section201 oftheTradeMarks
Act 2002 (2002 No 49).
132 Order for delivery up in criminal proceedings
(1) Thecourtbeforewhichproceedingsarebroughtagainstapersonforanoffenceagainst section131 may,ifitissatisfiedthat, at the time of the defendant’s arrest or charge,—
- (a)
- the defendant had in the defendant’s possession, custody,orcontrolinthecourseofabusinessaninfringing copy of a copyright work; or
- (b)
- the defendant had in the defendant’s possession, custody, or control an object specifically designed or
adapted for making copies of a particular copyright work, knowing that the object had been or was to be used to make infringing copies,—
order that the infringing copy or object be delivered up to the copyright owner or to such other person as the court may direct.
- (2)
- Anordermaybemadeundersubsection(1)bythecourtofits ownmotionorontheapplicationoftheprosecution,andmay bemadewhetherornotthepersonisconvictedoftheoffence, but shall not be made—
- (a)
- after the end of the period of 6 years from the date on which the infringing copy or object in question was made; or
- (b)
- if it appears to the court unlikely that any order will be made under section 134 in the proceedings.
- (3)
- Sections 126 to 129 (which relate to presumptions) apply in proceedings for an order under this section.
- (4)
- A person to whom an infringing copy or other object is delivered up pursuant to an order made under this section shall retain the copy or object pending the making of an order, or the decision not to make an order, under section 134. Compare: 1962 No 33 s 28(4); Copyright, Designs and Patents Act 1988
s 108(1), (3), (5) (UK)
133 Liability of officers of body corporate Where any body corporate is convicted of an offence against section 131, every directorand every personconcerned in the management of the body corporate shall be guilty of the offence if it is proved—
- (a)
- that the act that constituted the offence took place with his or her authority, permission, or consent; and
- (b)
- that he or she—
- (i)
- knew, or could reasonably be expected to have known, that the offence was to be or was being committed; and
- (ii)
- failed to take all reasonable steps to prevent or
stop it. Compare: 1991 No 69 s 340
133A Evidence in proceedings
- (1)
- Inproceedingsforanoffenceagainst section131,whetherby way of a hearing in the first instance or by way of appeal or otherwise, the court may receive an affidavit as evidence of the existence and ownership of copyright.
- (2)
- A party to the proceedings may apply to the court to require apersonwhoseevidencehasbeengivenbyaffidavittoattend theproceedingsforthepurposesofcross-examination;andthe court may make an order accordingly. Section133A:inserted,on20August2003,by section201 oftheTradeMarks
Act 2002 (2002 No 49).
Disposal of infringing copy or other object
134 Order as to disposal of infringing copy or other object
- (1)
- An application may be made to the court for an order that an infringing copy or other object delivered up pursuant to an order made under section 122 or section 132 shall be—
- (a)
- forfeited to the copyright owner; or
- (b)
- destroyedorotherwisedealtwithasthecourtthinksfit.
- (2)
- In considering what order (if any) should be made under subsection (1), the court shall have regard to—
- (a)
- whetherotherremediesavailableinproceedingsforinfringementofcopyrightwouldbeadequatetocompensate the copyright owner and to protect the interests of the copyright owner; and
- (b)
- the need to ensure that no infringing copy is disposed ofinamannerthatwouldadverselyaffectthecopyright owner.
- (3)
- The court shall issue directions as to the service of notice on persons having an interest in the copy or other object.
- (4)
- Any person having an interest in the copy or other object is entitled—
- (a)
- toappearinproceedingsforanorderunderthissection, whether or not that person is served with notice; and
- (b)
- to appeal against any order made, whether or not that
person appears in the proceedings;— and an order made under subsection (1) shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
- (5)
- Wherethereismorethan1personinterestedinacopyorother object,thecourtmaydirectthattheobjectbesold,orotherwise dealtwith,andtheproceedsdivided,andshallmakeanyother order as it thinks just.
- (6)
- If the court decides that no order should be made under this section,thepersoninwhosepossession,custody,orcontrolthe copy or other object was before being delivered up is entitled to its return. Compare: 1962 No33s 28(4); Copyright,DesignsandPatents Act 1988 s114
(UK)
Part 7 Border protection measures 135 Definitions
In this Part, unless the context otherwise requires,—
chiefexecutive has themeaning giventoit by section2(1) of the Customs and Excise Act 1996 claimant means a person who gives a notice under section
136(1)
controloftheCustomshasthemeaninggiventoitby section 20 of the Customs and Excise Act 1996 court means the High Court Customsofficer hasthemeaninggiventoitin section2(1) of
the Customs and Excise Act 1996 pirated copy—
- (a)
- means any copy of a copyright work that is a literary, dramatic, musical,orartisticworkorthetypographical arrangementofapublishededitionorasoundrecording or a film, where the copy is made—
- (i)
- directly or indirectly from the copyright work; and
- (ii)
- without the licence of the person who owns, in thecountrywherethecopyismade,thecopyright in the work; and
(iii) incircumstancesinwhichthemakingofthecopy would,ifithadbeendoneinNewZealand,have constituted an infringement of copyright under this Act; and
- (b)
- includesanyillicitrecordingwithinthemeaningof sec tion 169, including any illicit recording that is a copy rightworksoldinacountryotherthanNewZealandby or with the licence of the owner of the copyright in the work in that country; but
- (c)
- does not include—
(i) anyothercopyrightworksoldinacountryother than New Zealand by or with the licence of the owner of the copyright in the work in that country; or
(ia) any other work that is not an infringing copy within the meaning of section 12; or
(ii) [Repealed]
Section135 chiefexecutive : inserted,on1October1996,bysection289(1)of the Customs and Excise Act 1996 (1996 No 27).
Section 135 collector : repealed, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).
Section 135 Comptroller : repealed, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).
Section135controloftheCustoms : substituted,on1October1996,bysection 289(1) of the Customs and Excise Act 1996 (1996 No 27).
Section 135 Customs officer : inserted, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).
Section135officerofCustoms : repealed,on1October1996,bysection289(1) of the Customs and Excise Act 1996 (1996 No 27).
Section135 piratedcopy paragraph(c)(ia): inserted,on19May1998,bysec tion7 oftheCopyright(RemovalofProhibitiononParallelImporting)Amendment Act 1998 (1998 No 20).
Section 135 pirated copy paragraph (c)(ii): repealed, on 20 August 2003, by section 201 of the Trade Marks Act 2002 (2002 No 49).
136 Notice may be given to chief executive
- (1)
- A person who owns the copyright in any 1 or more literary, dramatic, musical, or artistic works, or 1 or more typographical arrangements of a published edition, or 1 or more sound recordings or films may give a notice in writing to the chief executive—
- (a)
- claiming that an item is a work, or items are works, as the case may be, in which the person owns the copyright; and
- (b)
- requesting the chief executive to detain any pirated copies of the itemor items,asthecase may be,that are in,oratanytimecomeinto,thecontroloftheCustoms.
- (2)
- A notice under subsection (1) shall—
- (a)
- containsuchparticularsinsupportoftheclaimthatthe itemisapiratedcopy,oritemsarepiratedcopies,asthe case may be, as may be prescribed in regulations made under this Act; and
- (b)
- specifytheperiodforwhichthenoticeistobeinforce, which period shall be—
- (i)
- not longer than 5 years from the date of the notice; or
- (ii)
- if the copyright in the work or any of the works to which the notice relates will expire within the period of 5 years from the date of the notice, not longer than the period for which that copyright will last.
- (3)
- Thechiefexecutiveshall,inrelationtoanynoticegivenunder subsection (1),—
- (a)
- accept the notice if the claimant and the notice given by the claimant comply with the requirements of this section and any regulations made under this Act:
- (b)
- declinethenoticeiftheclaimantorthenoticegivenby the claimant does not comply with the requirements of thissectionandanyregulationsmadeunderthisAct,—
and shall within a reasonable period of receiving the notice advise the claimant whether the notice has been accepted or declined.
(4) Anoticeacceptedundersubsection(3)(a)remainsinforcefor the period specified in the notice unless—
- (a)
- it is revoked by the claimant by notice in writing; or
- (b)
- the court orders, in proceedings under section 141(1), that the notice be discharged.
Section 136: substituted, on 1 October 1996, by section 2 of the Copyright Amendment Act 1996 (1996 No 28).
137 Determination whether item is pirated copy
(1) Where—
- (a)
- anoticethathasbeenacceptedunder section136(3)(a) is in force; and
- (b)
- thechiefexecutiveformstheopinionthatanyitemthat has been imported and that is in the control of the Customs may be a pirated copy to which the notice relates,—
the chief executive may conduct such investigation as he or sheconsidersnecessaryinordertoestablishwhetherornotthe item appears to be a pirated copy to which the noticerelates.
(2) Wherethechiefexecutiveconductsaninvestigation,heorshe may, subject to section 138, require—
- (a)
- the claimant; or
- (b)
- any other person appearing to the chief executive to
have an interest in the item— tosupplysuchinformationasthechiefexecutivemayspecify for the purpose of the investigation, within 10 working days of being required to do so.
- (3)
- Whetherornotthechiefexecutiveconductsanyinvestigation, heorshemust,withinareasonableperiodofforminganopinionundersubsection(1),makeadeterminationwhetherornot the item appears to be a pirated copy to which the notice relates.
- (4)
- Nothing in this section applies to an item that has been imported for private and domestic use. Section137: substituted,on28July1997,bysection2oftheCopyrightAmend
ment Act 1997 (1997 No 38).
139 Notice of determination
(1) Where the chief executive makes a determination under sec tion 137(3), the chief executive must cause written notice of the determination to be served on—
- (a)
- the claimant; and
- (b)
- any other person appearing to the chief executive to
have an interest in the item— within such period as may reasonably be necessary to effect service.
- (2)
- Every notice required to be served on the claimant or other person under subsection (1) may be given to the claimant or other person—
- (a)
- bypersonaldeliverytotheclaimantorotherperson;or
- (b)
- by posting it to the last known address of the claimant orotherperson,inwhichcaseitshallbedeemedtohave been served on the claimant or other person at the time at which it would have been delivered in the ordinary course of post; and in proving posting—
- (i)
- it shall be sufficient to prove that the notice was properly addressed; and
- (ii)
- itshallbepresumed,intheabsenceofprooftothe contrary,thatthenoticewaspostedonthedayon which it was dated; or
- (c)
- by sending it by facsimile to the last known facsimile numberoftheclaimantorotherperson,inwhichcaseit shall,intheabsenceofprooftothecontrary,bedeemed to have been served on the claimant or other person on thedayafterthedayonwhichitwassent;and,inprovingsending,itshallbesufficienttoprovethatafacsimile machine generated a record of the transmission of the notice to such facsimile number.
- (3)
- The detention of any item under section 140 is not rendered illegal by a failure to serve notice under subsection (1). Section 139(1): substituted, on 28 July 1997, by section 3 of the Copyright
Amendment Act 1997 (1997 No 38).
141 Proceedings
- (1)
- Any person may apply to the court for an order that a notice accepted undersection 136(3)(a) be discharged,and thecourt may make such an order accordingly.
- (2)
- Anypersonmayapplytothecourtforanorderthatanitemdetainedunder section140 be released,and the court may make such an order accordingly.
- (3)
- Any person may apply to the court for a decision on whether or not an item the subject of a determination made under sec tion137(3) isapiratedcopythathasbeenimportedotherthan for private and domestic use, and the court shall make such a decision accordingly.
- (4)
- Noticeofproceedingsundersubsection(3)shallbeservedon the chief executive.
- (5)
- In proceedings under subsection (3), the court shall issue directionsastotheserviceofnoticeonpersonshavinganinterestintheitemthatisthesubjectofproceedings,andanysuch person is entitled—
- (a)
- toappearinthoseproceedings,whetherornotthatper son was served with notice under section 139; and
- (b)
- to appeal against any order made in those proceedings, whetherornotthatpersonappearedintheproceedings.
- (6)
- No order made in proceedings under subsection (3) shall take effectuntiltheendoftheperiodwithinwhichnoticeofanappealmaybegivenor,ifbeforetheendofthatperiodnoticeof appealisdulygiven,untilthefinaldeterminationorabandonment of the proceedings on the appeal. Section141(4): amended,on1October1996,bysection289(1)oftheCustoms
and Excise Act 1996 (1996 No 27).
141A Forfeiture of goods by consent If any pirated copies have been detained in the custody of the chief executive or any Customs officer, the importer or consignee of the copies may, by notice in writing to the chief executive,consenttothecopiesbeingforfeitedtotheCrownand, onthegivingofsuchnotice,thecopieswillbeforfeitedtothe Crown. Section141A:inserted,on20August2003,by section201 oftheTradeMarks
Act 2002 (2002 No 49).
142 Powers of court
- (1)
- Where,inproceedingsunder section141(3),thecourtdecides thatanitemthesubjectofadeterminationmadeunder section 137(3) is a pirated copy that has been imported other than for private and domestic use, the court shall make an order that the item be—
- (a)
- forfeited to the claimant; or
- (b)
- destroyed; or
- (c)
- otherwise dealt with as the court thinks fit.
- (2)
- In considering what order should be made under subsection (1), the court shall have regard to—
- (a)
- whetherotherremediesavailableinproceedingsforinfringementofcopyrightwouldbeadequatetocompensate the claimant and to protect that person’s interests; and
- (b)
- theneedtoensurethatnopiratedcopyisdisposedofin a manner that would adversely affect the claimant.
- (3)
- Where more than 1 person is interested in an item, the court may direct that the item be sold, or otherwise dealt with, and the proceeds divided, and shall make any other order as it thinks just.
- (4)
- Where,inproceedingsunder section141(3),thecourtdecides that an item the subject of a determination made under sec tion 141(3) is not a pirated copy that has been imported other thanforprivateanddomesticuse,thecourtmaymakeanorder thatanypersonwhoisapartytotheproceedingspaycompensation in such amount as the court thinks fit to the importer, consignee, or owner of the item.
143 Inspection of item
(1) The chief executive or a Customs officer shall, in respect of any item in his or her possession that is or may be the subject of—
- (a)
- a notice given under section 136(1); or
- (b)
- an investigation under section 137; or
- (c)
- proceedings under section 141,— allow any person claiming to have an interest in—
- (d)
- the item; or
- (e)
- anyinvestigationunder section137 ,oranyproceedings
under section 141, in relation to the item— to inspect that item.
- (2)
- A person referred to in subsection (1) may—
- (a)
- inspect the item during normal office hours; or
- (b)
- with the approval of the chief executive or a Customs officer, remove the item or an example of the item to such place, for such period, and on such conditions as the chief executive or Customs officer may specify, for the purpose of inspecting it.
- (3)
- Anypersonwhointendstoinspectanyitemunderthissection shall give the chief executive or Customs officer not less than 72 hours’ notice of his or her intention to inspect that item. Section143(1): amended,on1October1996,bysection289(1)oftheCustoms
and Excise Act 1996 (1996 No 27).
Section 143(2): substituted, on 1 October 1996, by section 289(1) of the Cus toms and Excise Act 1996 (1996 No 27).
Section143(3): amended,on1October1996,bysection289(1)oftheCustoms and Excise Act 1996 (1996 No 27).
145 Delegation of powers, duties, and functions
- (1)
- WiththewrittenconsentoftheMinisterofCustoms,thechief executive may from time to time, either generally or particularly,bywritingunderhisorherhand,delegatetoanyCustoms
officeralloranyofthepowers,duties,andfunctionsconferred or imposed on the chief executive by or under this Part.
- (2)
- Nodelegationundersubsection(1)shallincludethepowerto delegate under that subsection.
- (3)
- Subjecttoanygeneralorspecialdirectionsgivenorconditions imposed from time to time by the Minister of Customs or the chief executive, as the case may be, the officer to whom any powersaresodelegatedmayexercisethosepowersinthesame mannerandwiththesameeffectasiftheyhadbeenconferred on that officer directly by this Act and not by delegation.
- (4)
- Every Customs officer purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.
- (5)
- Any delegation under this section may be made to any specifiedpersonortotheholderorholdersforthetimebeingofany specified office or class of offices.
- (6)
- Every such delegation shall be revocable at will, and no such delegationshallpreventtheexerciseofanypowerbythechief executive.
- (7)
- Any such delegation shall, until revoked, continue in force according to its tenor, notwithstanding the fact that the chief executivebywhomitwasmadehasceasedtoholdoffice,and shall continue to have effect as if made by the successor in office of the chief executive. Section145: substituted, on 1 October 1996,by section 289(1)ofthe Customs
and Excise Act 1996 (1996 No 27).
146 Protection of persons acting under authority of Act Neither the Crown nor the chief executive nor any Customs officer shall be liable for any loss or damage occasioned by anythingdoneoromittedtobedoneorpurportingtohavebeen doneintheexerciseofanypower,duty,orfunctionunderthis Part or any regulations made under this Act for the purposes of this Part, unless the chief executive or any Customs officer has not acted in good faith. Compare: 1966 No 19 s 228A; 1971 No 42 s 10 Section 146: amended, on 1 October 1996, by section 289(1) of the Customs and Excise Act 1996 (1996 No 27).
Part 8 Copyright licensing
147 Works of more than 1 author
(1) ReferencesinthisParttolicencesorlicensingschemescovering works of more than 1 author do not include licences or licensing schemes covering only—
- (a)
- a single collective work or collective works of which the authors are the same; or
- (b)
- works made by or by employees of, or commissioned by,asingleindividual,firm,company,orgroupofcompanies.
(2) Insubsection(1), groupofcompanies meansaholdingcom pany and its subsidiaries as defined in sections 5 and 6 of the Companies Act 1993. Compare: Copyright, Designs and Patents Act 1988 s 116(4) (UK) Section147(2): substituted,on31October2008,bysection67oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
References and applications with respect tolicensing schemes
148 Licensing schemes to which sections 149 to 155 apply
Sections 149 to 155 apply to—
- (a)
- licensing schemes that—
- (i)
- are operated by licensing bodies; and
- (ii)
- relate to copyright in literary, dramatic, musical, or artistic works, or films, or film soundtracks when accompanying a film; and
(iii) cover works of more than 1 author; and (iv) relate to licences for copying the work or performing, showing, or playing the work in public or communicating the work to the public:
- (b)
- all licensing schemes in relation to copyright in sound recordings (other than film soundtracks when accompanying a film), communication works, or the typographical arrangement of published editions:
- (c)
- all licensing schemes that—
- (i)
- relate to copyright in computer programs, sound recordings, or films; and
- (ii)
- relatetolicencesfortherentalofcopiesofworks of those descriptions to the public:
- (d)
- all licensing schemes that authorise—
- (i)
- copying of literary, dramatic, musical, or artistic worksorthetypographicalarrangementsofpublishededitionsbyoronbehalfofeducationalestablishments; or
- (ii)
- copying in the circumstances set out in section 45(4) ; or
(iii) recordinginthecircumstancessetoutin sections 48(1) and 91(2);—
- (iv)
- [Repealed] and in those sections the term licensing scheme means a licensing scheme of any of those descriptions. Compare: Copyright, Designs and Patents Act 1988 s 117 (UK)
Section 148(a)(iv): substituted, on 31 October 2008, by section 68(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 148(b): amended, on 31 October 2008, by section 68(2) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section 148(d)(iii): substituted, on 31 October 2008, by section 68(3) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section148(d)(iv): repealed,on31October2008,bysection68(3)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
References with respect to licensing schemes
149 Reference of proposed licensing scheme to Tribunal
- (1)
- The terms of a licensing scheme that—
- (a)
- is proposed to be operated by a licensing body; and
- (b)
- is proposed to apply generally or in relation to any de
scription of cases— may be referred to the Tribunal by—
- (c)
- the operator of the proposed scheme; or
- (d)
- anorganisationclaimingtoberepresentativeofpersons claimingthattheyrequirelicencesincasesofadescription to which the scheme would apply.
- (2)
- The Tribunal shall first decide whether to entertain the referenceandmaydeclinetodosoonthegroundthatthereference is premature.
- (3)
- If the Tribunal decides to entertain the reference, it shall consider the matter referredand makesuch order,eitherconfirming orvaryingthe proposedscheme, either generally or sofar as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
- (4)
- The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. Compare: Copyright, Designs and Patents Act 1988 s 118 (UK)
150 Reference of licensing scheme to Tribunal
(1) If, while a licensing scheme is in operation, a dispute arises between the operator of the scheme and—
- (a)
- a person claiming that he or she requires a licence in a case of a description to which the scheme applies; or
- (b)
- an organisation claiming to be representative of such
persons,— the operator or that person or organisation may refer the scheme, in so far as it relates to cases of that description, to the Tribunal.
- (2)
- AschemethathasbeenreferredtotheTribunalunderthissection shall remain in operation until proceedings on the reference are concluded.
- (3)
- The Tribunal shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
- (4)
- The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. Compare: 1962 No 33 s 39(1), (3)–(5)(a); Copyright, Designs and Patents Act
1988 s 119 (UK)
151 Further reference of scheme to Tribunal
(1) WheretheTribunalhasonapreviousreferenceofalicensing scheme (whether under this section or section 149 or section 150 ), made an order with respect to the scheme, then, subject to subsection (2), while the order remains in force,—
- (a)
- the operator of the scheme; or
- (b)
- a person claiming that he or she requires a licence in a case of the description to which the order applies; or
- (c)
- an organisation claiming to be representative of such
persons— mayagainreferthescheme,sofarasitrelatestocasesofthat description, to the Tribunal.
(2) Except with the special leave of the Tribunal, a licensing scheme shall not be referred again to the Tribunal under subsection (1) in respect of the same description of cases at a time earlier than—
- (a)
- the end of the period of 12 months from the date of the order on the previous reference; or
- (b)
- iftheorderwasmadesoastobeinforcefor15months or less, the beginning of the period of 3 months immediately before the expiry of the order,—
whichever occurs first.
- (3)
- AschemethathasbeenreferredtotheTribunalunderthissection shall remain in operation until proceedings on the reference are concluded.
- (4)
- The Tribunal shall consider the matter in dispute and make such order, either confirming, varying, or further varying the scheme so far as it relates to cases ofthe description to which thereferencerelates,astheTribunalmaydeterminetobereasonable in the circumstances.
- (5)
- The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. Compare: 1962 No 33 s 40; Copyright, Designs and Patents Act 1988 s 120
(UK)
152 Effect of order of Tribunal made on reference
- (1)
- A licensing scheme that has been confirmed or varied by an order of the Tribunal made under section 149 or section 150 or section 151 shall be in force or, as the case may be, remain in operation so far as it relates to cases of the description in respect of which the order was made, so long as the order remains in force.
- (2)
- Whileanorderisinforce,apersonwho,inacaseofaclassto which the order applies,—
- (a)
- paystotheoperatoroftheschemeanychargespayable under the scheme in respect of a licence covering the caseinquestionor,iftheamountcannotbeascertained, gives an undertaking to the operator to pay the charges when ascertained; and
- (b)
- complies with the other terms applicable to such a li
cence under the scheme— shallbeinthesameposition asregards infringementofcopyrightasifthatpersonhadatallmaterialtimesbeentheholder ofalicencegrantedbythe owner of thecopyright in question in accordance with the scheme.
- (3)
- The Tribunal may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which the order is made, but not earlier than the date on whichthereferencewasmadeor,iflater,onwhichthescheme came into operation.
- (4)
- If such a direction is made,—
- (a)
- anynecessaryrepayments,orfurtherpayments,shallbe made in respect of charges already paid; and
- (b)
- thereferenceinsubsection(2)(a)tothechargespayable undertheschemeshallbeconstruedasareferencetothe charges so payable under the order.
Compare: 1962 No 33 ss 39(5)(b), 45(1)–(3); Copyright, Designs and Patents Act 1988 s 123(1)–(3) (UK)
Applications with respect to licensing schemes
153 Application for grant of licence in connection with licensing scheme
- (1)
- Apersonwhoclaims,inacasecoveredbyalicensingscheme, thattheoperatoroftheschemehasrefusedtogranttothatperson or procure the grant to that person of a licence in accordancewiththescheme,orhasfailedtodosowithinareasonable timeafterbeingasked,mayapplytotheTribunalforalicence.
- (2)
- A person who claims, in a case excluded from a licensing scheme,—
(a) that the operator of the scheme has refused to grant to that person or procure the grant to that person of a licence,orhasfailedtodosowithinareasonabletimeof
149
being asked, and that in the circumstances it is unreasonable that a licence should not be granted; or
(b) that the operator of the scheme proposes terms for a
licence that are unreasonable— may apply to the Tribunal.
- (3)
- Acaseshallberegardedasexcludedfromalicensingscheme for the purposes of subsection (2) if—
- (a)
- theschemeprovidesforthegrantoflicencessubjectto terms excepting matters from the licence and the case falls within such an exception; or
- (b)
- the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.
- (4)
- If the Tribunal is satisfied that the claim is well-founded, it shall make an order declaring that, in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Tribunal may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances.
- (5)
- The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. Compare: 1962No33ss36(3),38(1)–(4);Copyright,DesignsandPatentsAct
1988 s 121 (UK)
154 Applicationforreviewoforderastoentitlementtolicence
- (1)
- Where the Tribunal has made an order under section 153 that a person is entitled to a licence under a licensing scheme, the operatoroftheschemeortheoriginalapplicantmayfromtime to time apply to the Tribunal to review the order.
- (2)
- Except with the special leave of the Tribunal, an application shallnotbemadeundersubsection(1)atatimeearlierthan—
- (a)
- the end of the period of 12 months from the date of the order,orofthedecisiononapreviousapplicationunder this section; or
- (b)
- iftheorderwasmadesoastobeinforcefor15months or less, or as a result of the decision on a previous application under this section is due to expire within 15 months of that decision, the beginning of the period of 3 months immediately before the expiry date,—
whichever occurs first.
(3) TheTribunalshallonanapplicationforreviewunderthissection confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordancewiththelicensingschemeor,asthecasemaybe,the circumstances of the case. Compare: Copyright, Designs and Patents Act 1988 s 122 (UK)
155 Effect of order of Tribunal made on application Where the Tribunal has made an order under section 153 and theorderremainsinforce,thepersoninwhosefavourtheorder is made shall, if that person—
- (a)
- paystotheoperatoroftheschemeanychargespayable in accordance with the order or, if the amount cannot beascertained,gives an undertaking to pay the charges when ascertained; and
- (b)
- complies with the other terms specified in the order,— be in the same position as regards infringement of copyright as if that person had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order. Compare: 1962 No 33 s 45(1)–(3); Copyright, Designs and Patents Act 1988
s 123(5) (UK)
References and applications with respect tolicensing by licensing bodies
156 Licences to which sections 157 to 160 apply Sections 157 to 160 apply to the following descriptions of li cences granted by a licensing body otherwise than under a licensing scheme:
- (a)
- licences that—
- (i)
- relate to copyright in literary, dramatic, musical, or artistic works, or films, or film soundtracks when accompanying a film; and
- (ii)
- cover works of more than 1 author; and
(iii) authorisethecopyingoftheworkortheperformance, showing, or playing of the work in public or the communication of the work to the public:
- (b)
- any licence relating to copyright in a sound recording (other than a film soundtrack when accompanying a film), communication work, or the typographical arrangement of a published edition:
- (c)
- alllicencesrelatingtocopyrightincomputerprograms, sound recordings, or films, so far as the licences relate to the rental of copies to the public:
- (d)
- licencesthatauthorisethecopyingofliterary,dramatic, musical, or artistic works or the typographicalarrangements of published editions by or on behalf of educational establishments;—
151
and in those sections the term licence means a licence of any of those descriptions. Compare: Copyright, Designs and Patents Act 1988 s 124 (UK)
Section 156(a)(iii): substituted, on 31 October 2008, by section 69(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 156(b): amended, on 31 October 2008, by section 69(2) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
157 Reference to Tribunal of proposed licence
- (1)
- The terms on which a licensing body proposes to grant a licencemaybereferredtotheTribunalbythelicensingbodyor the prospective licensee.
- (2)
- The Tribunal shall first decide whether to entertain the reference,andmaydeclinetodosoonthegroundthatthereference is premature.
- (3)
- If the Tribunal decides to entertain the reference, it shall consider the terms of the proposed licence and make such order, eitherconfirming orvaryingthe terms,asit may determineto be reasonable in the circumstances.
- (4)
- The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine. Compare: Copyright, Designs and Patents Act 1988 s 125 (UK)
158 Reference to Tribunal of expiring licence
- (1)
- A licensee under a licence that is due to expire, either by effluxion of time or as a result of notice given by the licensing body, may refer the licence to the Tribunal on the ground that
it isunreasonableinthecircumstances thatthelicenceshould cease to be in force.
- (2)
- Such a reference may not be made earlier than the beginning of the period of 3 months immediately before the licence is due to expire.
- (3)
- A licence in respect of which a reference has been made to the Tribunal under this section shall remain in operation until proceedings on the reference are concluded.
- (4)
- IftheTribunalfindsthereferencewell-founded,itshallmake anorderdeclaringthatthelicenseeshallcontinuetobeentitled tothebenefitofthelicenceonsuchtermsastheTribunalmay determine to be reasonable in the circumstances.
- (5)
- An order of the Tribunal under this section may be made so astobeinforceindefinitelyorforsuchperiodastheTribunal may determine. Compare: Copyright, Designs and Patents Act 1988 s 126 (UK)
159 Application for review of order as to licence
- (1)
- Where the Tribunal has made an order under section 157 or section 158, the licensing body or the person entitled to the benefit of the order may apply to the Tribunal to review the order.
- (2)
- Except with the special leave of the Tribunal, an application shallnotbemadeundersubsection(1)atatimeearlierthan—
- (a)
- the end of the period of 12 months from the date of the orderorofthedecisiononapreviousapplicationunder this section; or
- (b)
- iftheorderwasmadesoastobeinforcefor15months or less, or as a result of the decision on a previous application under this section is due to expire within 15 months of that decision, the beginning of the period of 3 months immediately before the expiry date,—
whichever occurs first.
(3) TheTribunalshallonanapplicationforreviewunderthissection confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances. Compare: Copyright, Designs and Patents Act 1988 s 127 (UK)
160 Effect of order of Tribunal as to licence
- (1)
- Where the Tribunal has made an order under section 157 or section158 andtheorderremainsinforce,thepersonentitled to the benefit of the order shall, if that person—
- (a)
- pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained,givesanundertakingtopaythechargeswhen ascertained; and
- (b)
- complies with the other terms specified in the order,— be in the same position as regards infringement of copyright as if that person had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.
- (2)
- The benefit of the order may be assigned,—
- (a)
- inthecaseofanordermadeundersection157 ,ifassignmentisnotprohibitedunderthetermsoftheTribunal’s order; and
- (b)
- Inthecaseofanordermadeundersection158 ,ifassignmentwasnotprohibitedunderthetermsoftheoriginal licence.
- (3)
- TheTribunalmaydirectthatanordermadeunder section157 or section 158, or an order made under section 159 varying suchanorder,sofarasitvariestheamountofchargespayable, has effect from a date before that on which the order is made, but not earlier than the date on which the reference or application was madeor, if later,on which the licencewas granted or, as the case may be, was due to expire.
- (4)
- If such a direction is made,—
- (a)
- anynecessaryrepayments,orfurtherpayments,shallbe made in respect of charges already paid; and
- (b)
- thereferenceinsubsection(1)(a)tothechargespayable in accordance with the order shall be construed, where the order is varied by a later order, as a referencetothe charges so payable under the later order.
Compare: Copyright, Designs and Patents Act 1988 s 128 (UK)
Factors to be taken into account in certain classes of cases
161 Unreasonable discrimination
Indeterminingwhatisreasonableonareferenceorapplication under this Part relating to a licensing scheme or licence, the Tribunal shall have regard to—
- (a)
- the availability of other schemes, or the granting of other licences, to other persons in similar circumstances; and
- (b)
- the terms of those schemes or licences;— and shall exercise its powers so as to ensure that there is no unreasonablediscriminationbetweenlicensees,orprospective licensees, under the scheme or licence to which the reference orapplicationrelatesandlicenseesunderotherschemesoperated by, or other licences granted by, the same person. Compare: Copyright, Designs and Patents Act 1988 s 129 (UK)
162 Licences for reprographic copying WhereareferenceorapplicationismadeunderthisPartrelatingtothelicensingofreprographiccopyingofpublishedliterary, dramatic, musical, or artistic works, or the typographical arrangementsofpublishededitions,theTribunalshallhaveregard to—
- (a)
- the extent to which published editions of the works in question are otherwise available; and
- (b)
- the proportion of the work to be copied; and
- (c)
- thenatureoftheusetowhichthecopiesarelikelytobe
put. Compare: Copyright, Designs and Patents Act 1988 s 130 (UK)
163 Licences for educational establishments in respect of works included in communication works
- (1)
- This section applies to references or applications made under this Part in relation to licences for—
- (a)
- therecording,foreducationalpurposes,byoronbehalf ofeducationalestablishments,ofcommunicationworks that include copyright works; or
- (b)
- making copies of those recordings for educational purposes.
- (2)
- When this section applies, the Tribunal must, in considering whatcharges(ifany)shouldbepaidforalicence,haveregard totheextenttowhichtheownersofthecopyrightintheworks includedinthecommunicationworkhavealreadyreceived,or are entitled to receive, payment in respectof their inclusion. Section 163: substituted, on 31 October 2008, by section 70 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
164 Licences to reflect conditions imposed by promoters of events
- (1)
- WhereareferenceorapplicationismadeunderthisPartinrespect of a licence relating to a sound recording, film, or communication workthat includes, or is to include, anyentertainment or other event, the Tribunal—
- (a)
- shallhaveregardtoanyconditionsimposedbythepromoters of the entertainment or other event; and
- (b)
- shallnotholdarefusalorfailuretograntalicencetobe unreasonableifthelicencecouldnothavebeengranted consistently with any such conditions.
- (2)
- NothinginthissectionshallrequiretheTribunaltohaveregard to any such conditions in so far as they—
- (a)
- purporttoregulatethechargestobeimposedinrespect of the grant of licences; or
- (b)
- relate to payments to be made to the promoters of any entertainment or other event in consideration of the grant of facilities for making the recording, film, or communication work.
Compare: Copyright, Designs and Patents Act 1988 s 132 (UK)
Section 164(1): amended, on 31 October 2008, by section 71(1) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section164(2)(b): amended,on31October2008,bysection71(2)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
165 Licences to reflect payments in respect of underlying rights
(1) In considering what charges (if any) should be paid for a licenceonareferenceorapplicationmadeunderthisPartinrelationtolicencesfortherentaltothepublicofcopiesofcomputer programs, sound recordings, or films, the Tribunal shall take into account any reasonable payments that the owner of copyright in the computer program, sound recording, or film isliabletomake,inconsequenceofthegrantingofthelicence oroftheactsauthorisedbythelicence,toownersofcopyright in works included in the program, recording, or film.
(2) On any reference or application made under this Part in relation to licensing in respect of copyright in sound recordings, films,orcommunicationworks,theTribunalshalltakeintoaccount, in consideringwhat charges (ifany) shouldbe paidfor a licence, any reasonable payments that the copyright owner isliabletomake,inconsequenceofthegrantingofthelicence or of the acts authorised by the licence, in respect of any performance included in the recording, film, or communication work. Compare: Copyright, Designs and Patents Act 1988 s 133 (UK) Section 165(2): amended, on 31 October 2008, by section 72(a) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27). Section 165(2): amended, on 31 October 2008, by section 72(b) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
166 Licences in respect of works included in retransmissions
- (1)
- This section applies to applications under this Part in relation to licences to include literary, dramatic, musical, or artistic works or sound recordings or films in a communication work when one communication work (in this section referred to as thefirsttransmission)is,byreceptionandimmediateretransmission,tobefurthercommunicatedtothepublic(inthissection referred to as the further transmission).
- (2)
- Sofarasthefurthertransmissionistothesameareaasthefirst transmission, the Tribunal shall, in considering what charges (if any) should be paid for licences for either transmission, have regard to the extent to which the copyright owner has alreadyreceived,orisentitledtoreceive,paymentfortheother transmissionthatadequatelyremuneratesthecopyrightowner in respect of transmissions to that area.
- (3)
- So far as the further transmission is to an area outside that to which the first transmission is made, the Tribunal shall not takethefurthertransmissionintoaccountinconsideringwhat
charges (if any) should be paid for licences for the first transmission. Compare: Copyright, Designs and Patents Act 1988 s 134 (UK)
Section166(1): substituted,on31October2008,bysection73oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
Implied indemnity in schemes or licences forreprographic copying
167 Implied indemnity in certain schemes and licences for reprographic copying
(1) This section applies to—
- (a)
- schemes for licensing reprographic copying of published literary, dramatic, musical, or artistic works, or the typographical arrangements of published editions; and
- (b)
- licences granted by licensing bodies for such copy
ing,— where the scheme or licence does not specify the works to which it applies with such particularity as to enable licensees todeterminewhetheraworkfallswithintheschemeorlicence by inspection of the scheme or licence and the work.
(2) There is implied—
- (a)
- ineveryschemetowhichthissectionappliesanundertakingbytheoperatoroftheschemetoindemnifyaperson granted a licence under the scheme; and
- (b)
- in every licence to which this section applies an undertaking by the licensing body to indemnify the licensee—
against any liability incurred by the licensee by reason of the licensee having infringed copyright by making or authorising themakingofreprographiccopiesofaworkincircumstances within the apparent scope of the licence.
- (3)
- For the purposes of this section, the circumstances of a case are within the apparent scope of a licence if—
- (a)
- itisnotapparentfrominspectionofthelicenceandthe work in question that the work does not fall within the description of works to which the licence applies; and
- (b)
- the licence does not expressly provide that it does not extend to copyright of the description infringed.
- (4)
- Inthissection,thetermliabilityincludesliabilitytopaycosts; andthissectionappliesinrelationtocostsreasonablyincurred by a licensee in connection with actual or contemplated proceedingsagainstthelicenseeforinfringementofcopyrightand to sums that the licensee is liable to pay in respect of such infringement.
- (5)
- Aschemeorlicencetowhichthissectionappliesmaycontain reasonable provision—
- (a)
- with respect to the manner in which, and time within which, claims under the undertaking implied by this section are to be made:
- (b)
- enablingtheoperatoroftheschemeor,asthecasemay be, the licensing body to take over the conduct of any proceedings affecting the amount of the operator’s or, as the case may be, the licensing body’s liability to indemnify under such an undertaking.
Compare: Copyright, Designs and Patents Act 1988 s 136 (UK)
168 Determination of equitable remuneration
(1) Where—
- (a)
- acopyrightownerandalibrariancannotagreeastothe remuneration to be paid to the copyright owner under section 54(2)(d); or
- (b)
- acopyrightownerandtheCrowncannotagreeastothe remuneration to be paid to the copyright owner under section 63(2); or
- (c)
- an exclusive licensee and the Crown cannot agree as tothe remunerationtobe paid to the exclusivelicensee under section 64(2); or
- (d)
- a licensee and the copyright owner or the exclusive licensee, as the case may be, cannot agree on the part of the payment to be paid to the licensee under section 64(3) ; or
- (e)
- acopyrightownerandapersonwhomakesarecording of a communication work cannot agree as to the remunerationtobepaidtothecopyrightownerunder section 91(2)(d) ,—
either party may apply to the Tribunal to determine the remuneration to be paid.
- (2)
- TheTribunalshallconsiderthematterandmakesuchorderas it may determine to be reasonable in the circumstances.
- (3)
- Either party to an order made under this section may apply to the Tribunal to review its order.
- (4)
- Except with the special leave of the Tribunal, an application under subsection (3) shall not be made earlier than the end of the period of 12 months from the date of the original order or of the order on a previous application under that subsection.
- (5)
- TheTribunalshallonanapplicationforreviewunderthissectionconfirm or vary itsoriginal order as the Tribunal maydetermine to be reasonable in the circumstances of the case.
- (6)
- An order under subsection (5) has effect from the date on which it is made or such later date as may be specified by the Tribunal. Section 168(1)(e): amended, on 31 October 2008, by section 74 of the Copy
right (New Technologies) Amendment Act 2008 (2008 No 27).
Part 9 Performers’ rights
169 Interpretation
In this Part, unless the context otherwise requires,— commercial exploitation means—
- (a)
- issuingrecordingsorcopiesofrecordingstothepublic; or
- (b)
- playingrecordingsorcopiesofrecordingsinpublic;or
- (c)
- showingrecordingsorcopiesofrecordingsinpublic;or
- (d)
- communicating recordings or copies of recordings to
the public conventioncountry meansanentity(whetheraState,partof a State, a territory for whose international relations a State is responsible,apoliticalunion,aninternationalorganisation,or any other entity) that is a party to an international agreement or arrangement relating to performers’ rights
copy, in relation to a recording,—
- (a)
- means a copy of a recording made directly from that recording; and
- (b)
- includesacopyofarecordingmadeindirectlyfromthat
recording exclusiverecordingcontractmeansacontractbetweenaperformerandanotherpersonunderwhichthatpersonisentitled, totheexclusionofallotherpersons(includingtheperformer), tomakerecordingsorcopiesofrecordingsforthepurposesof commercial exploitation
illicit recording—
- (a)
- means a recording of the whole or any substantial part ofaperformancemadewithouttheperformer’sconsent and otherwise than for private and domestic use; and
- (b)
- includes a copy, made without the performer’s consent and otherwise than for private and domestic use, of a recording where—
- (i)
- the recording was made without the performer’s consent; or
- (ii)
- the copy is made for purposes different from thoseforwhichtheperformergavehisorherconsent to the recording; or
(iii) the recording was made in accordance with any of the exemptions contained in sections 175 to 179 or sections181to191 ,andthecopyismade for different purposes
performance—
- (a)
- means—
- (i)
- a dramatic performance, including a dance, a mime, and a performance given with the use of puppets; or
- (ii)
- a musical performance; or
(iii) a reading or recitation of a literary work; or - (iv)
- aperformanceofavarietyactoranysimilarpres
entation,— being in each case either—
- (v)
- aliveperformancegiveninanycountrybyaNew Zealandcitizenorapersondomiciledorresident in New Zealand, or by a citizen or subject of or a person domiciled or resident in a convention country; or
- (vi)
- a live performance given in New Zealand or a convention country; or
(vii) aperformancetowhichthisPartappliespursuant to section170(2) or section203 orpursuanttoan Order in Council made under section 204; but
- (b)
- does not include—
- (i)
- a performance referred to in section 47(1); or
- (ii)
- areading,recital,ordeliveryofanyitemofnews and information; or
(iii) a performance of a sporting activity; or
(iv) participationinaperformanceasamemberofan
audience person having recording rights includes—
- (a)
- any person who is a party to, and has the benefit of, an exclusive recording contract to which the performance is subject; or
- (b)
- anypersontowhomthebenefitofanexclusiverecording contract has been assigned; or
- (c)
- any person who is authorised to make recordings or copiesofrecordingsforthepurposesofcommercialexploitation by a person to whom paragraph (a) or paragraph (b) applies
recording,inrelationtoaperformance,meansasoundrecording or film—
- (a)
- made directly from the performance; or
- (b)
- madefromacommunicationworkthatincludestheperformance.
Compare: Copyright Act 1968 s 248A(2) (Aust); Copyright, Designs and Patents Act 1988 s 180(2) (UK)
Section169commercialexploitationparagraph(d): substituted,on31October 2008, by section 75(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 169 convention country : substituted, on 14 October 1999, by section 2(2) of the Copyright Amendment Act 1999 (1999 No 124).
Section 169 recording paragraph (b): amended, on 31 October 2008, by sec tion 75(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
170 Application
- (1)
- This Part applies to any act done on or after the commencementofthisActinrelationtoaperformancegivenonorafter that commencement.
- (2)
- Notwithstanding subsection (1), where the performance was given—
- (a)
- in New Zealand; or
- (b)
- inaconventioncountryinrespectofwhich section203 applies this Part; or
- (c)
- inaconventioncountryinrespectofwhichanOrderin Council made under section 204 is in force; or
- (d)
- in any country by a New Zealand citizen or a person domiciled or resident in New Zealand, or by a citizen orsubjectoforapersondomiciledorresidentinaconvention country,—
thisPartalsoappliesinrelationtoaperformancegivenbefore the commencement of this Act if—
- (e)
- aperiodofnotmorethan50yearshaselapsedfromthe end of the calendar year in which the performance was given; or
- (f)
- inthecaseofaperformancegiveninaconventioncountry, or in another country by a citizen or subject of or a person domiciled or resident in a convention country, any term of protection given to that performance in the convention country has not already expired.
- (3)
- Notwithstandingthat,byvirtueofsubsection(2),thisPartappliestoaperformancegivenbeforethecommencementofthis Act, nothing in this Part applies to—
- (a)
- anyactdone,inrelationtothatperformance,beforethe commencement of this Act or in pursuance of arrangements made before the commencement of this Act; or
- (b)
- the sale, letting for hire, or offer or exposure for sale or hire, after the commencement of this Act, of any recording or copy of a recording in existence in New Zealandimmediatelybeforethecommencementofthis Act.
- (4)
- The rights conferred by this Part are independent of—
- (a)
- any copyright in, or moral rights relating to, any work performed or any sound recording or film of, or communication work that includes, the performance; and
- (b)
- any other right or obligation arising otherwise than under this Part.
- (5)
- TherightsconferredbythisPartonaperformerareconferred only in relation to performances by that performer, whether alone or with others. Compare: Copyright, Designs and Patents Act 1988 s 180(3), (4) (UK)
Section 170(4)(a): amended, on 31 October 2008, by section 76 of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Performers’ rights
171 Consent required for recording or live transmission of performance
- (1)
- A performer’s rights are infringed by a person who, without the performer’s consent,—
- (a)
- makes,otherwisethanforhisorherprivateanddomestic use, a recording of the whole or any substantial part of a performance; or
- (b)
- communicates live to the public the whole or any substantial part of a performance.
- (2)
- In proceedings for infringement of a performer’s rights brought under this section, damages shall not be awarded againstadefendantwhoshowsthatatthetimeoftheinfringement the defendant believed on reasonable grounds that the performer’s consent had been given. Compare: Copyright, Designs and Patents Act 1988 s 182 (UK)
Section171(1)(b): substituted,on31October2008,bysection77oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
172 Infringement by use of recording made without performer’s consent A person (A) infringes a performer’s rights if—
- (a)
- without the performer’s consent and by means of a recording, A shows in public, plays in public, or communicates to the public the whole or a substantial part of a performance; and
- (b)
- the recording was made without the performer’s consent; and
- (c)
- Aknowsorhasreasontobelievethattherecordingwas made without the performer’s consent.
Section 172: substituted, on 31 October 2008, by section 78 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
173 Copying of recordings
- (1)
- A performer’s rights are infringed by a person who, without the performer’s consent and otherwise than for that person’s private and domestic use, copies a recording if the person knows or has reason to believe that the recording was made without the performer’s consent.
- (2)
- In proceedings for infringement of a performer’s rights brought under this section, damages shall not be awarded againstadefendantwhoshowsthatatthetimeoftheinfringement the defendant believed on reasonable grounds that the performer’s consent to the recording had been given.
- (3)
- A performer’s rights are infringed by a person who, without the performer’s consent and otherwise than for that person’s private and domestic use, copies a recording—
- (a)
- if the copy is made for purposes different from those for which the performer gave his or her consent to the recording; or
- (b)
- iftherecordingwasmadeinaccordancewithanyofthe exemptions contained in any of sections 175 to 179 or sections 181 to 191 and the copy is made for different purposes.
- (4)
- In proceedings for infringement of a performer’s rights brought under this section, damages shall not be awarded againstadefendantwhoshowsthatatthetimeoftheinfringement the defendant believed on reasonable grounds that the performer’s consent to the copying of the recording had been given.
174 Infringement by importing, possessing, or dealing with illicit recording
(1) A performer’s rights are infringed by a person who, without the performer’s consent,—
- (a)
- imports into New Zealand otherwise than for that person’s private and domestic use; or
- (b)
- inthecourseofabusiness,possesses,sells,letsforhire,
offers or exposes for sale or hire, or distributes— arecordingthatis,andthatthe personknowsor hasreasonto believe is, an illicit recording.
- (2)
- Where,inproceedingsforinfringementofaperformer’srights brought underthissection,a defendantshowsthat the recordingwasinnocentlyacquiredbythedefendantorapredecessor intitleofthedefendant,theonlyremedyavailableagainstthe defendant in respect of the infringement is damages not exceedingareasonablepaymentinrespectoftheactcomplained of.
- (3)
- In subsection (2), the term innocently acquired means that the person acquiring the recording did not know, and had no reason to believe, that it was an illicit recording. Compare: Copyright, Designs and Patents Act 1988 s 184 (UK)
Acts permitted in relation to performances
175 Incidental copying of performance or recording
- (1)
- The rights conferred by this Part are not infringed by—
- (a)
- the incidental inclusion of a performance or recording in a sound recording, film, or communication work; or
- (b)
- theplayingofasoundrecording,theshowingofafilm, orthemakingofacommunicationwork,wheretheperformance or sound recording has been incidentally includedinthatsoundrecording,film,orcommunication work; or
- (c)
- the issue to the public of copies of a sound recording, film, or communication work in which a performance or recording has been incidentally included.
- (2)
- For the purposes of this section, a performance or recording, so far as it consists of—
- (a)
- music; or
- (b)
- words spoken or sung with music,— shallnotberegardedasincidentallycopiedinanotherworkif the performance or recording is deliberately copied. Compare: Copyright, Designsand Patents Act 1988 Schedule 2 para 3 (UK)
Section175(1): substituted,on31October2008,bysection79oftheCopyright (New Technologies) Amendment Act 2008 (2008 No 27).
175A Transient reproduction of recording of performance Areproductionofarecordingofaperformanceofaworkdoes not infringe the rights conferred by this Part in the recording if the reproduction—
- (a)
- is transient or incidental; and
- (b)
- is a necessary part of a technological process for the viewing of, or listening to, the recording by a member of the public to whom the recording is lawfully made available; and
- (c)
- has no independent economic significance.
Section 175A: inserted, on 31 October 2008, by section 80 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
176 Permitted acts in relation to performances, criticism, reviews, and news reporting Fair dealing with a performance or recording—
- (a)
- forthepurposesofcriticismorreview,ofthatoranother performance or recording, or of a work; or
- (b)
- for the purposes of reporting current events— does not infringe any of the rights conferred by this Part. Compare: Copyright, Designsand Patents Act1988 Schedule2 para 2 (UK)
177 Things done for purposes of instruction or examination
- (1)
- TherightsconferredbythisPartarenotinfringedbythecopying of a recording of a performance if—
- (a)
- the copying is done—
- (i)
- in the course of preparation for instruction; or
- (ii)
- for use in the course of instruction; or
(iii) in the course of instruction; or (iv) after the course of instruction— wherethelessonisonhowtomakefilmsorfilmsoundtracks orrelates to the learningof a language or isconducted by correspondence; and
- (b)
- the copying is done by or on behalf of a person who is to give, is giving, or has given the lesson or by or on
behalfofapersonwhoistoreceive,isreceiving,orhas received the lesson; and
- (c)
- nochargeismadeforthesupplyofacopytoanystudent or other person who is to receive, is receiving, or has received the lesson.
- (2)
- The rights conferred by this Part are not infringed—
- (a)
- by the copying of a recording of a performance for the purposes of setting or answering the questions in an examination; or
- (b)
- byanythingdoneforthepurposesofanexaminationby wayof communicating the questions to thecandidates.
Compare: Copyright, Designs and Patents Act 1988 Schedule 2 para 4(1), (2) (UK)
178 Playing or showing sound recording, film, or communication work at educational establishment
(1) Theplayingorshowingofasoundrecording,film,orcommunicationworkataneducationalestablishmentforthepurposes ofinstructionbeforeanaudienceconsistingofpersonswhoare students or staff members at the establishment or persons directly connected with the activities of the establishment does not infringe any of the rights conferred by this Part.
(2) For the purposes of this section, a person shall not be treated as a persondirectly connected with the activities of an educationalestablishment byreasononlythatthepersonisaparent or guardian of a student at that educational establishment. Compare: Copyright, Designsand Patents Act1988 Schedule2 para 5 (UK) Section 178 heading: amended, on 31 October 2008, by section 81(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 178(1): amended, on 31 October 2008, by section 81(2) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
179 Recording of communication works by educational establishment A recording of a communication work, or a copy of such a recording, may be made by or on behalf of an educational establishmentfortheeducationalpurposesofthatestablishment withoutinfringinganyoftherightsconferredbythisPartinre
lationtoanyperformanceorrecordingincludedintherecording or copy. Compare: Copyright,DesignsandPatentsAct1988Schedule2para6(1)(UK)
Section 179 heading: amended, on 31 October 2008, by section 82(1) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Section 179: amended, on 31 October 2008, by section 82(2) of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
180 Subsequent dealings
- (1)
- Wherearecording,oracopyofarecording,thatwouldotherwise be an illicit recording—
- (a)
- is made in accordance with section 177 or section 179; and
- (b)
- is subsequently dealt with,— it shall be treated as an illicit recording—
- (c)
- for the purposes of the dealing referred to in paragraph (b), unless that dealing is authorised by the performer; and
- (d)
- for the purposes of any dealing that is subsequent to thedealingreferredtoinparagraph(b),unlessthefirstmentioned dealing is authorised by the performer.
- (2)
- In subsection (1), the term dealt with means sold or let for hire, or offered or exposed for sale or hire, in the course of a business. Compare: Copyright,DesignsandPatentsAct1988Schedule2paras4(3),6(2)
(UK)
181 Parliamentary and judicial proceedings TherightsconferredbythisPartarenotinfringedbyanything doneforthepurposesofparliamentaryorjudicialproceedings or for the purposes of reporting such proceedings. Compare: Copyright, Designsand Patents Act 1988 Schedule 2 para 8 (UK)
182 Royal commissions and statutory inquiries TherightsconferredbythisPartarenotinfringedbyanything done for the purposes of a Royal commission, a commission of inquiry, a ministerial inquiry, or a statutory inquiry. Compare: Copyright, Designsand Patents Act 1988 Schedule 2 para 9 (UK)
183 Acts done under statutory authority
- (1)
- Where the doing of a particular act is specifically authorised by an enactment, the doing of that act does not infringe the rights conferred by this Part unless the enactment provides otherwise.
- (2)
- Nothinginthissectionshallbeconstruedasexcludinganydefence of statutory authority otherwise available under or pursuant to any enactment. Compare: Copyright, Designs and PatentsAct 1988 Schedule 2 para11 (UK)
184 Use of recordings of spoken works in certain cases
- (1)
- ItisnotaninfringementoftherightsconferredbythisPartto usearecordingofareadingorrecitationofaliterarywork(or to copy the recording and use the copy) if—
- (a)
- it was made for the purpose of—
- (i)
- reporting current events; or
- (ii)
- communicatingallorpartofthereadingorrecitation to the public; and
- (b)
- the conditions in subsection (2) are complied with.
- (2)
- The conditions referred to in subsection (1) are that—
- (a)
- the recording is a direct recording of the reading or recitationandisnottakenfromapreviousrecordingor from a communication work; and
- (b)
- the making of the recording was not prohibited by or onbehalfofthepersongivingthereadingorrecitation; and
- (c)
- theusemadeoftherecordingisnotofakindprohibited by or on behalf ofthatperson before the recording was made; and
- (d)
- the use is by or with the authority of a person who is
lawfully in possession of the recording. Compare: Copyright, Designs and PatentsAct 1988 Schedule 2 para13 (UK)
Section184(1): substituted,on31October2008,bysection83(1)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section184(2)(a): amended,on31October2008,bysection83(2)oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
185 Recordings of folk songs
- (1)
- A recording of a performance of a song may be made for the purpose of including the song in an archive maintained by a body prescribed by regulations made under this Act without infringing any of the rights conferred by this Part, if the conditions in subsection (2) are complied with.
- (2)
- The conditions referred to in subsection (1) are that—
- (a)
- the words are unpublished and of unknown authorship at the time the recording is made; and
- (b)
- themakingoftherecordingdoesnotinfringeanycopyright; and
- (c)
- the making of the recording is not prohibited by any performer.
- (3)
- Copies of a recording made in reliance on subsection (1) and included in an archive maintained by a body prescribed by regulations made under this Act may, if the condition contained in subsection (4) is complied with, be made and suppliedbythearchivistwithoutinfringinganyoftherightsconferred by this Part.
- (4)
- Theconditionreferredtoinsubsection(3)isthatnopersonis furnished with more than 1 copy of the same recording. Compare: Copyright, Designs and PatentsAct 1988 Schedule 2 para14 (UK)
186 Playing of sound recordings for purposes of club, society, etc
- (1)
- It is not an infringement of any right conferred by this Part to play a sound recording as part of the activities of, or for the benefit of, a club, society, or other organisation, if the conditions contained in subsection (2) are complied with.
- (2)
- The conditions referred to in subsection (1) are—
- (a)
- that the club, society, or organisation is not established or conducted for profit; and
- (b)
- that the main objects of the club, society, or organisation are charitable or are otherwise concerned with the advancement of religion, education, or social welfare; and
- (c)
- that the proceeds of any charge for admission to the place where the recording is to be heard are applied
171
solely for the purposes of the club, society, or organisation. Compare: Copyright, Designs and PatentsAct 1988 Schedule 2 para15 (UK)
187 Incidentalrecordingforpurposesofcommunicationwork
- (1)
- A person who proposes to communicate a recording of a performance to the public in circumstances not infringing rights underthisPartdoesnotrequireconsentforthepurposesofthis Parttothemakingofthefurtherrecordingiftheconditionsin subsection (2) are complied with.
- (2)
- Theconditionsreferredtoinsubsection(1)arethatthefurther recording—
- (a)
- mustonlybeusedforcommunicatingittothepublicin circumstances notinfringingrightsunderthisPart;and
- (b)
- mustbedestroyedwithin6monthsafterfirstbeingcommunicatedtothepublic,unlesstheMinisterhasauthorisedthepreservationoftherecordingintherecordsofa government department or in the national archives because of its documentary character or exceptional importance.
- (3)
- Arecordingmadeinaccordancewiththissectionistreatedas an illicit recording—
- (a)
- forthepurposesofanyuseinbreachoftheconditionin subsection (2)(a); and
- (b)
- forallpurposesaftereitheroftheconditionsinsubsection (2) is broken.
Section 187: substituted, on 31 October 2008, by section 84 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
188 Free public playing or showing of broadcast or cable programme
- (1)
- The playing in public or showing in public of a broadcast (other than a broadcast to which subsections (4) to (7) apply) orcable programmetoan audience who have notpaidfor admission to the place where the broadcast or cable programme is to be heard or seen does not infringe any right conferred bythisPartinrelationtoaperformanceorrecordingincluded in—
- (a)
- the broadcast or cable programme; or
- (b)
- any sound recording or film that is played in public or shown in public by reception of the broadcast or cable programme.
- (2)
- For the purposes of subsection (1), the audience shall be treated as having paid for admission to a place—
- (a)
- iftheyhavepaidforadmissiontoaplaceofwhichthat place forms part; or
- (b)
- ifgoodsorservicesaresuppliedatthatplace,oraplace of which that place forms part,—
- (i)
- at prices that are substantially attributable to the facilitiesaffordedforhearingorseeingthebroadcast or cable programme; or
- (ii)
- at prices exceeding those usually charged there and that are partly attributabletothosefacilities; or
- (c)
- if the place is a hotel, motel, camping ground, or any otherplacethatadmitspersonsforafeeforthepurposes ofobtainingaccommodationofatemporarynatureand they are persons residing at the hotel, motel, camping ground, or other place.
- (3)
- Forthepurposesofsubsection(1),thefollowingpersonsshall not be treated as having paid for admission to a place:
- (a)
- persons admitted as residents or inmates of a place (other than a hotel, motel, camping ground, or other place to which subsection (2)(c) applies):
- (b)
- personsadmittedasmembersofacluborsocietywhere thepaymentisonlyformembershipofthecluborsociety and the provision of facilities for hearing or seeing broadcastsorcableprogrammesisonlyincidentaltothe main purposes of the club or society.
- (4)
- Subsections(5)to(7)applyinrespectoftheplayingorshowing of a broadcast—
- (a)
- that is made for reception in the area in which it is played or shown; and
- (b)
- thatisnotasatellitetransmissionoranencryptedtransmission; and
- (c)
- that is shown or played simultaneously upon reception of the transmission of the broadcast.
- (5)
- The playing in public or showing in public of a broadcast to whichsubsection(4)appliestoanaudiencewhohavenotpaid for admission to the place where the broadcast is to be heard or seen does not infringe any right conferred by this Part in relation to a performance or recording included in—
- (a)
- the broadcast; or
- (b)
- any sound recording or film included in the broadcast.
- (6)
- For the purposes of subsection (5), the audience shall be treated as having paid for admission to a place—
- (a)
- iftheyhavepaidforadmissiontoaplaceofwhichthat place forms part; or
- (b)
- ifgoodsorservicesaresuppliedatthatplace,oraplace of which that place forms part,—
- (i)
- at prices that are substantially attributable to the facilitiesaffordedforhearingorseeingthebroadcast; or
- (ii)
- at prices exceeding those usually charged there and that are partlyattributable to those facilities.
- (7)
- Forthepurposesofsubsection(5),thefollowingpersonsshall not be treated as having paid for admission to a place:
- (a)
- persons admitted as residents or inmates of a place (including, without limitation, persons residing in a hotel, motel, camping ground, or any other place that admits persons for a fee for the purposes of obtaining accommodation of a temporary nature):
- (b)
- personsadmittedasmembersofacluborsocietywhere thepaymentisonlyformembershipofthecluborsociety and the provision of facilities for hearing or seeing broadcastsorcableprogrammesisonlyincidentaltothe main purposes of the club or society.
- (8)
- Where the making of the broadcast or inclusion of the programmeinacableprogrammeservicewasaninfringementof therightsconferredbythisPartinrelationtoaperformanceor recording,thefactthatthebroadcastorprogrammewasheard orseeninpublicbythereceptionofthebroadcastorcableprogramme shall be taken into account in assessing the damages for that infringement. Compare: Copyright, Designs and PatentsAct 1988 Schedule 2 para18 (UK)
190 Provision of subtitled copies of communication work
- (1)
- A prescribed body that makes a recording of a communication work for the purpose of providing people who are deaf or hard of hearing or physically or mentally disabled in any otherwaywithcopiesthataresubtitledorotherwisemodified for their special needs, does not infringe any right under this Part in relation to a performanceor recording included inthat communication work.
- (2)
- A body must not be prescribed for the purposes of subsection
(1) if it is established or conducted for profit.
Section 190: substituted, on 31 October 2008, by section 87 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
191 Recording of communication work for archival purposes
- (1)
- Any person (A) who records, or makes a copy of a recording of, a communication work does not infringe any right under this Part in relation to a performance or recording included in the communication work if—
- (a)
- thecommunicationworkfallswithinaprescribedclass; and
- (b)
- Amakestherecordingorthecopyforthepurposeofit being placed in an archive maintained by a prescribed body.
- (2)
- A body must not be prescribed for the purposes of subsection
(1) if it is established or conducted for profit.
Section 191: substituted, on 31 October 2008, by section 88 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
192 Power of Tribunal to give consent on behalf of performer
(1) Where a person wishes to make a copy of a recording but—
- (a)
- theconsentofaperformertothemakingofsuchacopy is required; and
- (b)
- either—
- (i)
- theidentityorwhereaboutsoftheperformercannot be ascertained by reasonable inquiry; or
- (ii)
- the performer unreasonably withholds his or her
consent,— the person may apply to the Tribunal for consent to make the copy.
- (2)
- The Tribunal may, subject to the provisions of this section, make an order giving consent to the making of the copy and may impose such conditions on the order as it thinks fit.
- (3)
- The consent given by the Tribunal under subsection (2) has effect as the consent of the performer for the purposes of the provisions of this Part relating to performers’ rights.
- (4)
- TheTribunalshallnotgiveconsentundersubsection(2)unless satisfiedthatsuchdirectionsastotheserviceorpublicationof notices as the Tribunal may give have been complied with.
- (5)
- TheTribunalshallnotgiveconsentundersubsection(2)unless satisfied that the performer’s reasons for withholding consent donotincludetheprotectionofanylegitimateinterestsof the performer; but it shall be for the performer to show what his or her reasons are for withholding consent, and in default of evidence as to his or her reasons the Tribunal may draw such inferences as it thinks fit.
- (6)
- In any case the Tribunal shall take into account the following factors:
- (a)
- whether the recording of which the applicant seeks to make a copy was made with the performer’s consent andislawfullyinthepossessionorcontroloftheperson proposing to make the copy:
- (b)
- whether the making of the copy is consistent with the obligations of the parties to the arrangements under which the recording was made, or is otherwise consistent with the purposes for which the recording was made.
- (7)
- WheretheTribunalgivesconsentunderthissection,itshall,in defaultofagreementbetweentheapplicantandtheperformer, make such order as it thinks fit as to the payment to be made to the performer in consideration of consent being given. Compare: Copyright, Designs and Patents Act 1988 s 190 (UK)
Duration and transmission of rights
193 Duration of rights
TherightsconferredbythisPartexistinrelationtoaperformanceuntiltheendoftheperiodof50yearsfromtheendofthe calendar year in which the performance takes place. Compare: Copyright, Designs and Patents Act 1988 s 191 (UK)
194 Transmission of rights
- (1)
- The rights conferred by this Part are not assignable, and are transmissible only in accordance with the provisions of this section.
- (2)
- On the death of a person entitled to performers’ rights,—
- (a)
- the rights pass to such person or persons as he or she maybytestamentarydispositionspecificallydirect;and
- (b)
- if or to the extent that there is no such direction, the rightsareexercisablebyhisorherpersonalrepresentatives;—
and references in this Part to the performer, in the context of thepersonhavingperformers’rights,shallbeconstruedasreferences to the person for the time being entitled to exercise those rights.
- (3)
- Where, under subsection (2)(a), a right becomes exercisable bymorethan1 person, itis exercisable by eachofthem independently of the other or others.
- (4)
- Any damages recovered by personal representatives pursuant to this section in respect of an infringement after a person’s deathshalldevolveaspartofhisorherestateasiftherightof action had existed and been vested in him or her immediately before his or her death. Compare: Copyright, Designs and Patents Act 1988 s 192 (UK)
Consent
195 Consent
- (1)
- Consent for the purposes of this Part may be given in relation to a specific performance, a specified description of performances, or performances generally, and may relate to past or future performances.
- (2)
- WherearightconferredbythisPartpassestoanotherperson, any consent binding on the person previously entitled binds the person to whom the right passes in the same way as if the consent had been given by him or her. Compare: Copyright, Designs and Patents Act 1988 s 193 (UK)
Remedies for infringement
196 Proceedings for infringement of performers’ rights
- (1)
- An infringement of any of the rights conferred by this Part is actionable by the performer in whom the right is vested.
- (2)
- An infringement of any of the rights conferred by this Part is alsoactionable,onbehalfoftheperformer,byapersonhaving recording rights, without any need to obtain the consent of the performer to the bringing of the proceedings, unless the performerexpresslyrequireshisorherconsenttobeobtained.
- (3)
- Inproceedingsforinfringementofanyoftherightsconferred by this Part, the relief that a court may grant includes—
- (a)
- aninjunction(subjecttosuchterms,ifany,asthecourt thinks fit); and
- (b)
- damages.
- (4)
- Where, in proceedings under this Part,—
- (a)
- the infringement is established; and
- (b)
- the court is satisfied that it is proper to do so, having regard to—
- (i)
- the flagrancy of the infringement; and
- (ii)
- any benefit accruing to the defendant by reason of the infringement; and
(iii) all other relevant matters,— thecourtmayawardsuchadditionaldamagesasthejusticeof the case may require. Compare: Copyright Act 1968 s 248J (Aust)
197 Order for delivery up in civil proceedings
(1) Where a person has an illicit recording of a performance in thatperson’spossession,custody,orcontrolinthecourseofa business,—
- (a)
- any person having performers’ rights in relation to the performance under this Part; or
- (b)
- any person having recording rights in relation to the
performance under this Part— mayapplytothecourtforanorderthattheillicitrecordingbe delivered up to him or her or such other person as the court may direct.
- (2)
- No order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section 202.
- (3)
- A person to whom an illicit recording is delivered up in pursuance of an order under this section shall, if an order under section202 isnotmade,retaintheillicitrecordingpendingthe makingofanorder,orthedecisionnottomakeanorder,under that section.
- (4)
- Notwithstandinganyruleofcourt,anordermaybemadepursuant to this section on an ex parte application where service of notice of the application would cause undue delay or other serious detriment to the applicant.
- (5)
- Nothing in this section affects any other power of the court.
Offences
198 Criminal liability for making, dealing with, using, or copying illicit recordings
- (1)
- Every person commits an offence against this section who, without the consent of the performer,—
- (a)
- makes for sale or hire; or
- (b)
- imports into New Zealand otherwise than for that person’s private and domestic use; or
- (c)
- possesses in the course of a business with a view to committing any act infringing the rights conferred by this Part; or
- (d)
- In the course of a business,—
- (i)
- offers or exposes for sale or hire; or
- (ii)
- sells or lets for hire; or
(iii) distributes— a recording that is, and that the person knows is, an illicit recording.
- (2)
- Every person commits an offence against this section who causes a recording that is, and that the person knows is, an illicit recording, to be—
- (a)
- played in public or shown in public; or
- (b)
- communicated to the public.
- (3)
- Every person commits an offence against this section who, otherwise than for that person’s private and domestic use, copies a recording—
- (a)
- without the consent of the performer, if the person knows that the recording was made without the performer’s consent; or
- (b)
- if the copy is made for purposes different from those for which the performer gave his or her consent, and the person knows that the performer has not consented to the copying of the recording for different purposes; or
- (c)
- if the original recording was made in accordance with any of theexemptionscontained in anyofsections175 to 179 or sections 181 to 191, and the copy is made for different purposes, and the person knows that the performerhasnotconsentedtothecopyingoftherecording for those different purposes.
- (4)
- Every person who commits an offence against subsection (1) or subsection (2) or subsection (3) is liable on summary conviction,—
- (a)
- inthecaseofanoffenceagainstsubsection(1),toafine notexceeding$5,000foreveryillicitrecordingtowhich theoffencerelates,butnotexceeding$50,000inrespect of the same transaction, or to imprisonment for a term not exceeding 3 months:
- (b)
- in the case of an offence against subsection (2) or subsection(3),toafinenotexceeding$50,000ortoimprisonment for a term not exceeding 3 months.
- (5)
- Where any person is convicted of an offence against this section in circumstances where that offence involves the making of profit or gain, that offence shall be deemed to have caused a loss of property for the purposes of section 32(1)(a) of the Sentencing Act 2002, and the provisions of that Act relating
to the imposition of the sentence of reparation shall apply accordingly. Compare: Copyright, Designs and Patents Act 1988 s 198(1), (2), (3)(a), (5),
(6) (UK)
Section198(2)(b): substituted,on31October2008,bysection89oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section 198(5): amended, on 30 June 2002, by section 186 of the Sentencing Act 2002 (2002 No 9).
199 Order for delivery up in criminal proceedings
- (1)
- Thecourtbeforewhichproceedingsarebroughtagainstapersonforanoffenceagainst section198 may, ifsatisfied that,at thetimeofthedefendant’sarrestorcharge,thedefendanthad in his possession, custody, or control in the course of a business an illicit recording, order that the recording be delivered uptoapersonhavingperformers’rightsinrelationtotheperformance or to such other person as the court may direct.
- (2)
- Anordermaybemadeundersubsection(1)bythecourtofits ownmotionorontheapplicationoftheprosecution,andmay bemadewhetherornotthepersonisconvictedoftheoffence, butshallnotbemadeifitappearstothecourtunlikelythatany order will be made under section 202 in the proceedings.
- (3)
- Apersontowhomanillicitrecordingisdelivereduppursuant to an order made under this section shall retain the recording pending the making of an order, or the decision not to make an order, under section 202. Compare: Copyright, Designs andPatents Act 1988 s 199(1), (3), (5) (UK)
200 False representation of authority to give consent
- (1)
- Everypersoncommitsanoffenceagainstthissectionwhorepresentsfalselythatheorsheisauthorisedbyanypersontogive consent for the purposes of this Part in relation to a performance, unless he or she believes on reasonable grounds that he or she is entitled to do so.
- (2)
- A person who commits an offence against this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding $10,000. Compare: Copyright, Designs and Patents Act 1988 s 201 (UK)
201 Liability of officers of body corporate Where any body corporate is convicted of an offence against section 198 or section 200, every director and every person concerned in the management of the body corporate shall be guilty of the offence if it is proved—
- (a)
- that the act that constituted the offence took place with his or her authority, permission, or consent; and
- (b)
- that he or she—
- (i)
- knew, or could reasonably be expected to have known, that the offence was to be or was being committed; and
- (ii)
- failed to take all reasonable steps to prevent or
stop it. Compare: 1991 No 69 s 340
202 Order as to disposal of illicit recording
- (1)
- An application may be made to the court for an order that an illicit recording delivered up pursuanttoan order madeunder section 197 or section 199 shall be—
- (a)
- forfeited to such person having performers’ rights in relation to the performance as the court may direct; or
- (b)
- destroyedorotherwisedealtwithasthecourtthinksfit.
- (2)
- In considering what order (if any) should be made under subsection (1), the court shall have regard to—
- (a)
- whetherotherremediesavailableinproceedingsforinfringementoftherightsconferredbythisPartwouldbe adequate to compensate the person or persons entitled totherightsandtoprotecttheinterestsofthatpersonor those persons; and
- (b)
- theneedtoensurethatnoillicitrecordingisdisposedof inamannerthatwouldadverselyaffectapersonhaving performers’ rights in the performance.
- (3)
- The court shall issue directions as to the service of notice on persons having an interest in the recording.
- (4)
- Any person having an interest in the recording is entitled—
- (a)
- toappearinproceedingsforanorderunderthissection, whether or not he or she is served with notice; and
- (b)
- to appeal against any order made, whether or not he or she appears in the proceedings;—
and an order made under subsection (1) shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
- (5)
- Where there is more than 1 person interested in a recording, the court may direct that the recording be sold, or otherwise dealtwith,andtheproceedsdivided,andshallmakeanyother order as it thinks just.
- (6)
- If the court decides that no order should be made under this section, the person in whose possession, custody, or control the recording was before being delivered up is entitled to its return. Compare: Copyright, Designs and Patents Act 1988 s 204 (UK)
Application to foreign countries
204 Application of Part 9 to other entities
- (1)
- OntherecommendationoftheMinister,theGovernor-General maybyOrderinCouncilapplyanyprovisionorprovisionsof this Part to any entity specified in the order (whether a State, part of a State, a territory for whose international relations a State is responsible, a political union, an international organisation, or any other entity).
- (2)
- An order—
- (a)
- may apply a provision unconditionally, or subject to conditions, modifications, or both; and
- (b)
- may apply a provision generally, or in relation to performances of a particular class or classes.
- (3)
- TheMinistermustnotrecommendthemakingofanorderapplying any provision of this Part to any entity unless satisfied that—
- (a)
- the entity is a convention country; or
- (b)
- provision is or will be made under the law of or applicabletotheentitygivingreciprocalprotectiontoperformances generally or (as the case requires) performances of the class or classes to which the order applies that provision of this Part.
- (4)
- IftheGovernmentofaStateisresponsiblefortheinternational relations of 1 or more territories, an order may apply a provision to—
- (a)
- theStateandtheterritory(or1ormoreoftheterritories) concerned; or
- (b)
- just the State; or
- (c)
- just the territory (or 1 or more of the territories) concerned.
Section204: substituted,on 14October1999,bysection2(1) oftheCopyright Amendment Act 1999 (1999 No 124).
Part 10 Copyright Tribunal
Constitution
205 Copyright Tribunal The Tribunal constituted by section 30 of the Copyright Act 1962 and known as the Copyright Tribunal shall continue in being.
206 Membership of Tribunal
- (1)
- TheTribunalshallconsistofachairpersonand2otherpersons.
- (2)
- The chairperson of the Tribunal—
- (a)
- shallbeappointedaschairpersonbytheGovernor-General on the recommendation of the Minister made after consultation with the Minister of Justice; and
- (b)
- shall be a barrister or solicitor of the High Court of not less than 7 years’ practice, whether or not the barrister or solicitor holds or has held judicial office.
- (3)
- The2otherpersonsshallbeappointedasmembersoftheTribunalbytheGovernor-Generalontherecommendationofthe Minister.
(4) No person shall be deemed to be employed in the service of the Crown for the purposes of the State Sector Act 1988 by virtue merely of his or her appointment to the Tribunal. Compare: 1962 No 33 s 30(1), (2), (7) Section 206(2)(a): substituted, on 1 October 1995, by section 10(3) of the De partment of Justice (Restructuring) Act 1995 (1995 No 39).
207 Term of office of members of Tribunal
- (1)
- Every member of the Tribunal shall hold office for a term not exceeding 5 years.
- (2)
- AnymemberoftheTribunalmayholdthatofficeconcurrently withanyotherofficeheldbyhimorherandmayfromtimeto time be reappointed.
- (3)
- Where the term for which a member was appointed expires, that member, unless sooner vacating or removed from office unde r section 208, shall continue to hold office, by virtue of the appointment for the term that has expired, until—
- (a)
- that member is reappointed; or
- (b)
- a successor to that member is appointed.
- (4)
- The powers of the Tribunal shall not be affected by any vacancy in its membership. Compare: 1962 No 33 s 30(3)–(6)
209 Deputies of members
(1) Where any member of the Tribunal—
- (a)
- becomes incapable of acting by reason of illness, absence, or other sufficient cause; or
- (b)
- deems it not proper or desirable that he or she should
act in any particular proceedings,— theGovernor-General,ontherecommendationoftheMinister, may appoint a person to act as the deputy of the member for the period or purpose stated in the appointment.
- (2)
- No person shall be appointed as a deputy of the chairperson unless he or she is eligible for appointment as chairperson.
- (3)
- Any deputy shall, while acting as such, be deemed to be a member of the Tribunal, and the deputy of the chairperson shall have all the powers of the chairperson.
- (4)
- No appointment of a deputy, and no acts done by a deputy as such, and no acts done by the Tribunal while any deputy is acting as such, shall in any proceedings be questioned on the groundthattheoccasionfortheappointmenthadnotarisenor had ceased. Compare: 1962 No 33 s 33
211 Jurisdiction of Tribunal
The Tribunal shall have such functions as are conferred on it by this Act or any other enactment. Compare: 1962 No 33 s 37
212 Parties to proceedings
- (1)
- Theoperatorofthelicensingschemeortheproposedlicensing scheme shall be a party to any proceedings under section 149 or section 150 or section 151 or section 153 or section 154 or section 157 or section 158 or section 159.
- (2)
- The Tribunal may direct that an organisation or person be addedasapartytoanyproceedingsbeforetheTribunalunder thisActwheretheTribunalissatisfiedthattheorganisationor person has a substantial interest in the matter in dispute and either—
- (a)
- theorganisationorpersonappliestobemadeapartyto those proceedings; or
- (b)
- the Tribunal of its own motion considers it desirable.
- (3)
- The Attorney-General, if in his or her opinion the public interest is or may be involved, may, on giving such notice to other parties as the Tribunal may direct, appear and be heard, or present submissions in writing on any proceedings before the Tribunal. Compare: 1962 No 33 s 42
213 Sittings of Tribunal
- (1)
- The Tribunal shall fix a time and place for the hearing of proceedingsandshallcausenoticetobegiventothepartiesofthe time and place so fixed.
- (2)
- No sitting of the Tribunal shall take place, except for the purposes of interlocutory or other ancillary matters, unless all members are present.
- (3)
- EverysittingoftheTribunalshallbeheldinsuchplaceasthe Tribunal deems convenient.
- (4)
- EverysittingoftheTribunalshallbeheldinpublicunlessthe Tribunal in any particular case, having regard to the interests ofthepartiesandofallotherpersonsconcerned,considersthat the sitting or any part of it should be held in private.
- (5)
- The Tribunal may make an order prohibiting the publication of any report or description of the proceedings or of any part of the proceedings.
- (6)
- Every person commits an offence and is liable on summary conviction to a fine not exceeding $3,000 who acts in contra
187
vention of any order made by the Tribunal under subsection (5).
(7) AnysittingoftheTribunalmaybeadjournedfromtimetotime and from place to place. Compare: 1962 No 33 s 43(1)–(4)
214 Procedure of Tribunal
- (1)
- AnypartytoproceedingsbeforetheTribunalmayappearpersonally or by the party’s barrister, solicitor, or agent.
- (2)
- TheTribunalmayappointabarristerorsolicitortoappearand be heard in proceedings as counsel assisting the Tribunal.
- (3)
- Thedecisionofthemajorityofmembersshallbethedecision of the Tribunal.
- (4)
- Every decision of the Tribunal shall be in writing and shall state the reasons for the decision.
- (5)
- Except as otherwise provided in this Part, the Tribunal shall determine its own procedure. Compare: 1962 No 33 s 43(5)–(8)
215 Evidence in proceedings before Tribunal
- (1)
- The Tribunal may receive as evidence any statement, document,information,ormatterthatmayinitsopinionassistitto deal effectively with the matters before it, whether or not the same would be admissible in a court of law.
- (2)
- TheTribunalmaytakeevidenceonoath,andforthatpurpose anymemberorofficeroftheTribunalmayadministeranoath.
- (3)
- The Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Tribunal thinks fit, verifying it by oath.
(4) Subject to subsections (1) to (3), the Evidence Act 2006 ap pliestotheTribunalinthesamemannerasiftheTribunalwere a court within the meaning of that Act. Compare: 1962 No 33 s 44; 1993 No 82 s 106 Section 215(4): amended, on 1 August 2007, by section 216 of the Evidence Act 2006 (2006 No 69).
216 Witness summons
- (1)
- The Tribunal may of its own motion, or on the application of any party to the proceedings, issue a witness summons to any person requiring that person to attend before the Tribunal to give evidence at the hearing of the proceedings.
- (2)
- The witness summons shall state—
- (a)
- the place where the person is to attend; and
- (b)
- the date and time when the person is to attend; and
- (c)
- the papers, documents, records, or things that that personisrequiredtobringandproducetotheTribunal;and
- (d)
- the entitlement to be tendered or paid a sum in respect of allowances and travelling expenses; and
- (e)
- the penalty for failing to attend.
- (3)
- The power to issue a witness summons may be exercised by the Tribunal or the chairperson, or by any officer of the Tribunal purporting to act by the direction or with the authority of the Tribunal or the chairperson. Compare: 1993 No 82 s 109
217 Service of summons
- (1)
- A witness summons may be served—
- (a)
- bydeliveringitpersonallytothepersonsummoned;or
- (b)
- bypostingitbyregisteredletteraddressedtotheperson summoned at that person’s usual place of residence.
- (2)
- The summons shall,—
- (a)
- where it is served under subsection (1)(a), be served at least 24 hours before the attendance of the witness is required; or
- (b)
- where it is served under subsection (1)(b), be served at least10daysbeforethedateonwhichtheattendanceof the witness is required.
- (3)
- Ifthesummonsispostedbyregisteredletter,itshallbedeemed forthepurposesofsubsection(2)(b)tohavebeenservedatthe timewhentheletterwouldbedeliveredintheordinarycourse of post. Compare: 1993 No 82 s 110
218 Witnesses’ allowances
- (1)
- Every witness attending before the Tribunal to give evidence pursuant to a summons shall be entitled to be paid witnesses’ fees, allowances, and travelling expenses according to the scalesforthetimebeingprescribedbyregulationsmadeunder the Summary Proceedings Act 1957, and those regulations shall apply accordingly.
- (2)
- On each occasion on which the Tribunal issues a summons under section 216, the Tribunal, or the person exercising the power of the Tribunal under subsection (3) of that section, shall fix an amount that, on the service of the summons, or at some other reasonable time before the date on which the witness is required to attend, shall be paid or tendered to the witness.
- (3)
- The amount fixed under subsection (2) shall be the estimated amountoftheallowancesandtravellingexpensestowhich,in the opinion of the Tribunal or person, the witness will be entitled according to the prescribed scales if the witness attends at the time and place specified in the summons.
- (4)
- Where a party to the proceedings has requested the issue of the witnesssummons, thefees,allowances, andtravelling expenses payable to the witness shall be paid by that party.
- (5)
- Where the Tribunal has of its own motion issued the witness summons, the Tribunal may direct that the amount of those fees, allowances, and travelling expenses—
- (a)
- form part of the costs of the proceedings; or
- (b)
- bepaidfrommoneyappropriatedbyParliamentforthe
purpose. Compare: 1993 No 82 s 111
219 Privileges and immunities
- (1)
- Witnesses appearing before the Tribunal shall have the same privilegesandimmunitiesaswitnesseshaveinproceedingsin a District Court.
- (2)
- Counsel and agents appearing before the Tribunal shall have the same privileges and immunities as counsel have in proceedings in a District Court. Compare: 1993 No 82 s 112
220 Non-attendance or refusal to co-operate
- (1)
- Everypersoncommitsanoffencewho,afterbeingsummoned toattendtogiveevidencebeforetheTribunalortoproduceto the Tribunal any papers, documents, records, or things, without sufficient cause,—
- (a)
- fails to attend in accordance with the summons; or
- (b)
- refusestobeswornortogiveevidence,or,havingbeen sworn,refusestoansweranyquestionthatthepersonis lawfully required by the Tribunal or any member of it to answer concerning the proceedings; or
- (c)
- fails to produce any such paper, document, record, or thing.
- (2)
- Everypersonwhocommitsanoffenceagainstsubsection(1)is liableon summary conviction to a finenot exceeding $1,500.
- (3)
- No person summoned to attend before the Tribunal shall be convictedofanoffenceagainstsubsection(1)unlesstherewas tendered or paid to that person travelling expenses in accord ance with section 218. Compare: 1993 No 82 s 113
221 Contempt of Tribunal
- (1)
- Every person commits an offence and is liable on summary conviction to a fine not exceeding $1,000 who—
- (a)
- assaults, threatens, or intimidates, or intentionally insults, the Tribunal or any member of it or any special adviser to or officer of the Tribunal, during a sitting of the Tribunal, or in going to, or returning from, any sitting; or
- (b)
- intentionally interrupts the proceedings of the Tribunal or otherwise misbehaves while the Tribunal is sitting; or
- (c)
- intentionally and without lawful excuse disobeys an order or direction of a member of the Tribunal in the course of any proceedings before the Tribunal.
- (2)
- AmemberoftheTribunalmayordertheexclusionfromasitting of the Tribunal of any person whose behaviour, in that member’s opinion, constitutes an offence against subsection (1), whether or not such person is charged with the offence;
and any constable may take such steps as are reasonably necessary to enforce such an exclusion. Section 221(2): amended, on 1 October 2008, pursuant to section 116(a)(ii) of
the Policing Act 2008 (2008 No 72).
222 Costs
- (1)
- TheTribunal,inanyproceedingsbeforeitunderthisAct,may make such order as to costs as it thinks fit.
- (2)
- AnysuchorderastocostsmaybefiledinaDistrictCourtand may be enforced as a judgment of that court. Compare: 1962 No 33 s 46
223 Stating case for High Court
- (1)
- TheTribunalmay,atanytime,beforeorduringthehearingor before delivering its decision, on the application of any party to the proceedings or of its own motion, state a case for the opinion of the High Court on any question of law arising in any proceedings before the Tribunal.
- (2)
- TheTribunalshallgivenoticetothepartiestotheproceedings of the Tribunal’s intention to state a case under this section, specifying the registry of the High Court in which the case is to be filed.
- (3)
- Except where the Tribunal intends to state the case of its own motion,thequestionshallbeintheformofaspecialcasetobe drawn up by the parties to the proceedings, and, if the parties do not agree, to be settled by the Tribunal.
- (4)
- WheretheTribunalintendstostateacaseofitsownmotion,it shallitselfstateandsignacasesettingforththefactsandquestions of law arising for the determination of the High Court.
- (5)
- Every case stated for the High Court under this section shall be dealt with in accordance with rules of court.
- (6)
- The High Court shall hear and determine any question submittedtoitunderthissection,andshallremitthecasewithits opinion to the Tribunal. Compare: 1962 No 33 s 47; 1993 No 82 s 122
224 Appeal on question of law
- (1)
- WhereanypartytoanyproceedingsbeforetheTribunalunder this Act is dissatisfied with any determination of the Tribunal asbeingerroneousinpointoflaw,thatpartymayappealtothe High Court on that question of law.
- (2)
- Every appeal under this section shall be dealt with in accordance with rules of court. Compare: 1993 No 94 s 58
Part 11 Miscellaneous provisions 225 Rightsandprivilegesunderotherenactmentsorcommon law
- (1)
- Nothing in this Act affects—
- (a)
- any right or privilege of any person under any other enactment:
- (b)
- any right or privilege of the Crown existing otherwise than under an enactment:
- (c)
- anyrightorprivilegeoftheHouseofRepresentatives:
- (d)
- therightoftheCrownoranypersonderivingtitlefrom the Crown to sell, use, or otherwise deal with objects forfeitedunderthelawsrelatingtocustomsandexcise:
- (e)
- the operation of any rule of equity relating to breaches of trust or confidence.
- (2)
- Subject to subsection (1), no copyright or right in the nature ofcopyrightshallexist otherwisethanunder thisActorsome other enactment in that behalf.
- (3)
- Nothing in this Act affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.
- (4)
- NothinginthisActaffectsanyrightofactionorotherremedy, whether civil or criminal, available otherwise than under this Actinrespectofactsinfringinganyoftherightsconferredby Part 4. Compare: 1962No33ss5,67;Copyright,DesignsandPatentsAct1988s171
(UK)
Technological protection measures
Heading: substituted,on31October2008,bysection90oftheCopyright(New Technologies) Amendment Act 2008 (2008 No 27).
226 Definitions of TPM terms
In sections 226A to 226E, unless the context otherwise re quires,— TPM or technological protection measure—
- (a)
- means any process, treatment, mechanism, device, or system that in the normal course of its operation preventsorinhibitstheinfringementofcopyrightinaTPM work; but
- (b)
- for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controlsgeographicmarketsegmentationbypreventingthe playbackinNewZealandofanon-infringingcopyofa work)
TPMcircumvention device means a device or means that—
- (a)
- isprimarilydesigned,produced,oradaptedforthepurpose of enabling or facilitating the circumvention of a technological protection measure; and
- (b)
- has only limited commercially significant application exceptforitsuseincircumventingatechnologicalprotection measure
TPMworkmeansacopyrightworkthatisprotectedbyatechnological protection measure. Section 226: substituted, on 31 October 2008, by section 90 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
226A Prohibitedconductinrelationtotechnologicalprotection measure
- (1)
- A person (A) must not make, import, sell, distribute, let for hire, offer or expose for sale or hire, or advertise for sale or hire,aTPMcircumventiondevicethatappliestoatechnological protection measure if A knows or has reason to believe
that it will, or is likely to, be used to infringe copyright in a TPM work.
- (2)
- Aperson(A)mustnotprovideaservicetoanotherperson(B) if—
- (a)
- AintendstheservicetoenableorassistBtocircumvent a technological protection measure; and
- (b)
- A knows or has reason to believe that the service will, or is likely to, be used to infringe copyright in a TPM work.
- (3)
- Aperson(A)mustnotpublishinformationenablingorassisting another person to circumvent a technological protection measure if A intends that the information will be used to infringe copyright in a TPM work. Section 226A: inserted, on 31 October 2008, by section 90 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
226C Offence of contravening section 226A
- (1)
- A person (A) commits an offence who, in the course of business, makes, imports, sells, distributes, lets for hire, offers or
exposes for sale or hire, or advertises for sale or hire, a TPM circumvention device that applies to a technological protection measure if A knows that it will, or is likely to, be used to infringe copyright in a TPM work.
- (2)
- A person (A) commits an offence who, in the course of business, provides a service to another person (B) if—
- (a)
- AintendstheservicetoenableorassistBtocircumvent a technological protection measure; and
- (b)
- Aknowsthattheservicewill,orislikelyto,beusedto infringe copyright in a TPM work.
- (3)
- A person (A) commits an offence who, in the course of business, publishes information enabling or assisting another person to circumvent a technological protection measure if A intendsthattheinformationwillbeusedtoinfringecopyrightin a TPM work.
- (4)
- A person who commits an offence under this section is liable on conviction on indictment to a fine not exceeding $150,000 or a term of imprisonment not exceeding 5 years or both. Section 226C: inserted, on 31 October 2008, by section 90 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
226E User’s options if prevented from exercising permitted act by TPM
- (1)
- Nothing in this Act prevents any person from using a TPM circumventiondevicetoexerciseapermittedactunder Part3 .
- (2)
- The user of a TPM work who wishes to exercise a permitted actunder Part3 butcannotpracticallydosobecauseofaTPM may do either or both of the following:
- (a)
- apply to the copyright owner or the exclusive licensee forassistanceenablingtheusertoexercisethepermitted act:
- (b)
- engageaqualifiedperson(see section226D(3) )toexercisethe permittedact on the user’s behalf usingaTPM circumvention device, but only if the copyright owner or the exclusive licensee has refused the user’s request forassistanceorhasfailedtorespondtoitwithinareasonable time.
- (3)
- Nothing in this Act prevents any person from using a TPM circumvention device to undertake encryption research if that person—
- (a)
- is either—
- (i)
- engagedinacourseofstudyataneducationalestablishmentinthefieldofencryptiontechnology; or
- (ii)
- employed, trained, or experienced in the field of encryption technology; and
- (b)
- has either—
- (i)
- obtainedpermissionfromthecopyrightowneror exclusive licensee of the copyright to the use of a TPM circumvention device for the purpose of the research; or
- (ii)
- has taken, or will take, all reasonable steps to obtain that permission.
- (4)
- A qualified person who exercises a permitted act on behalf of the user of a TPM work must not charge the user more than a sum consisting of the total of the cost of the provision of the serviceandareasonablecontributiontothequalifiedperson’s general expenses. Section 226E: inserted, on 31 October 2008, by section 90 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
Copyright management information
Heading: inserted, on 31 October 2008, by section 90 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
226F Meaning of copyright management information In sections 226G, 226H, and 226J CMI or copyright management information means information attached to, or embodied in, a copy of a work that—
- (a)
- identifies the work, and its author or copyright owner; or
- (b)
- identifiesorindicatessomeorallofthetermsandconditions for using the work, or indicates that the use of the work is subject to terms and conditions.
Section 226F: inserted, on 31 October 2008, by section 90 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
226G Interference with CMI prohibited
- (1)
- A person (A) must not remove or modify any copyright management information attached to, or embodied in, a copy of a work.
- (2)
- However, subsection (1) does not apply if—
- (a)
- Ahastheauthorityofthecopyrightownerortheexclusive licensee to remove or modify the copyright management information; or
- (b)
- Adoesnotknow,andhasnoreasontobelieve,thatthe removal or modification will induce, enable, facilitate, orconcealaninfringementofthecopyrightinthework.
Section 226G: inserted, on 31 October 2008, by section 90 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
226H Commercial dealing in work subject to CMI interference
- (1)
- Aperson(A)mustnot,inthecourseofbusiness,make,import, sell, let for hire, offer or expose for sale or hire, or advertise forsaleorhire,acopyofaworkifanycopyrightmanagement information attached to, or embodied in, the copy has been removed or modified without the authority of the copyright owner or the exclusive licensee.
- (2)
- However, subsection (1) does not apply if—
- (a)
- Ahastheauthorityofthecopyrightownerortheexclusive licensee to remove or modify the copyright management information; or
- (b)
- Adoesnotknow,andhasnoreasontobelieve,thatthe removal or modification will induce, enable, facilitate, orconcealaninfringementofthecopyrightinthework; or
- (c)
- Adoesnotknow,andhasnoreasontobelieve,thatany copyright management information attached to, or embodiedin,thecopyhasbeenremovedormodifiedwithouttheauthorityofthecopyrightownerortheexclusive licensee.
Section 226H: inserted, on 31 October 2008, by section 90 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
226I Contravention of section 226G or 226H Acopyrightownerorlicenseeofaworkhasthesamerightsin relationtoacontraventionof section226G or 226H asacopyright owner has in respect of an infringement of copyright. Section226I:inserted,on31October2008,by section90 oftheCopyright(New
Technologies) Amendment Act 2008 (2008 No 27).
226J Offence of dealing in work subject to CMI interference
- (1)
- A person (A ) who contravenes section 226H commits an of fence if—
- (a)
- A knows that the copyright management information has been removed or modified without the authority of the copyright owner or exclusive licensee; and
- (b)
- A knows that dealing in the work will induce, enable, facilitate,orconcealaninfringementofthecopyrightin the work.
- (2)
- A person who commits an offence under subsection (1) is liable on conviction on indictment to a fine not exceeding $150,000 or a term of imprisonment not exceeding 5 years or both. Section 226J: inserted, on 31 October 2008, by section 90 of the Copyright
(New Technologies) Amendment Act 2008 (2008 No 27).
227 Offence of fraudulently receiving programmes
- (1)
- Every person commits an offence and is liable on summary conviction to a fine not exceeding $5,000 who, with intent to avoid payment of any charge applicable to the reception of a programmeincludedinacommunicationworkprovidedfrom a place in New Zealand, receives such a programme.
- (2)
- Where any body corporate is convicted of an offence against this section, every director and every person concerned in the management of the body corporate shall be guilty of the offence if it is proved—
- (a)
- that the act that constituted the offence took place with his or her authority, permission, or consent; and
- (b)
- that he or she—
- (i)
- knew, or could reasonably be expected to have known, that the offence was to be or was being committed; and
- (ii)
- failed to take all reasonable steps to prevent or stop it.
Compare: 1991 No 69 s 340; Copyright, Designs and Patents Act 1988 s 297 (UK)
Section 227(1): amended, on 31 October 2008, by section 91 of the Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
228 Rights and remedies in respect of apparatus, etc, for unauthorised reception of transmissions
(1) A person who—
- (a)
- makes charges for the reception of programmes includedinacommunicationworkprovidedfromaplace in New Zealand; or
- (b)
- sends encrypted transmissions of any other description
from a place in New Zealand— isentitledtotherightsandremediesinsubsections(2)and(3).
- (2)
- A person to whom subsection (1) applies—
- (a)
- has the same rights and remedies against a person referred to in subsection (3) as a copyright owner has in respect of an infringement of copyright; and
- (b)
- has the same rights under section 122 or section 132 in relationtoanyapparatusordevice(ofthekindreferred to in subsection (3)(a)) as a copyright owner has in relation to an infringing copy.
- (3)
- The person referred to in subsection (2) is a person who—
- (a)
- makes, imports, sells, or lets for hire any apparatus or device designed or adapted to enable or assist persons toreceivetheprogrammesorothertransmissionswhen they are not entitled to do so; or
- (b)
- publishes any information that is calculated to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so.
- (4)
- In section121(1) asitappliestoproceedingsforinfringement oftherightsconferredbythis section,the referenceto the defendantnotknowingorhavingreasontobelievethatcopyright existed in the work shall be construed as a reference to not knowing or having reason to believe that the acts complained of infringed the rights conferred by this section.
(5) Section 134 applies, with all necessary modifications, in rela tiontothedisposal of anythingdeliveredupundersubsection (2)(b). Compare: Copyright, Designs and Patents Act 1988 s 298 (UK) Section228(1)(a): amended,on31October2008,pursuanttosection92ofthe Copyright (New Technologies) Amendment Act 2008 (2008 No 27).
Other countries
229 Supplementary provisions as to fraudulent reception
- (1)
- The Governor-General may from time to time, by Order in Council,—
- (a)
- provide that section 227 applies in relation to pro grammes included in services provided from a country or territory outside New Zealand; and
- (b)
- providethat section228 appliesinrelationtosuchprogrammesandtoencryptedtransmissionssentfromsuch a country or territory.
- (2)
- No such order shall be made unless it appears to the Governor-General that provision has been or will be made under thelawsofthatcountryorterritorygivingadequateprotection to persons making charges for programmes included in communication works provided from New Zealandor, as the case may be, for encrypted transmissions sent from New Zealand.
(3) Where sections 227 and 228 apply in relation to a communi cation work, they also apply to any service run for the person providing that service, or a person providing programmes for thatservice,wheretheservicesorunconsistswhollyormainly in the sending by means of a telecommunications system of sounds or visual images, or both. Compare: Copyright, Designs and Patents Act 1988 s 299 (UK) Section 229(2): amended, on 31 October 2008, by section 93(1) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27). Section 229(3): amended, on 31 October 2008, by section 93(2) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
230 Application to convention countries
(1) Subjecttosubsection(2),theprovisionsofthisAct,otherthan the provisions of Part 9, shall—
- (a)
- applyinrelationtopersonswhoarecitizensorsubjects of any convention country or are domiciled or resident there, as they apply in relation to persons who are New Zealand citizens or are domiciled or resident in New Zealand:
- (b)
- apply in relation to bodies incorporated under the law of any convention country as they apply in relation to bodies incorporated under the law of New Zealand:
- (c)
- apply in relation to works first published in any convention country as they apply in relation to works first published in New Zealand:
- (d)
- apply in relation to communication works communicatedfromanyconventioncountryastheyapplyinrelationtocommunicationworkscommunicatedfromNew Zealand,—
untilthecloseof31December1995or,inrelationtoanyparticularconventioncountry,thecomingintoforceinrespectof that convention country of an Order in Council made under section 232, whichever is the earlier.
- (2)
- For the avoidance of doubt, it is hereby declared that subsection (1) applies, in relation to a state of affairs or an action referred to in that subsection as existing or taking place in a convention country, whether or not the country in which the stateofaffairsexistedortheactionwastakenwas,atthetime the state of affairs existed or the action was taken, a convention country.
- (3)
- NoprovisionofthisActshallapply,pursuanttosubsection(1), toaworkmadebeforethecommencementofthisActunless—
- (a)
- copyright existed in the work under the Copyright Act 1962 immediately before the commencement of this Act; or
- (b)
- the work enjoyed protection in the nature of copyright in any convention country and, at the commencement of this Act, the term of that protection had not expired; or
- (c)
- the work was first published in a convention country.
Section230(1)(d): substituted,on31October2008,bysection94oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
231 Expenditure or liability incurred in connection with copyright work
- (1)
- This section applies in any case where—
- (a)
- aworkwasmadebeforethecommencementofthisAct; and
- (b)
- copyrightdidnotexistintheworkundertheCopyright Act 1962 when the work was made; and
- (c)
- on the commencement of this Act, copyright exists in the work pursuant to section 230.
- (2)
- Where, in any case to which subsection (1) applies, a person incurred any expenditure or liability relating to an act that, at the time the act was done, was not an act restricted by copyright in the work, the person does not do an act restricted by copyright by doing, or continuing to do, that act in respect of the work when copyright exists in the work.
- (3)
- Notwithstandingsubsection(2),anactthatunderthatsubsectionisnotanactrestrictedbycopyrightwhencopyrightexists in the work may become an act restricted by copyright if the ownerofthecopyrightorhisorherexclusivelicensee(ifany) pays the person such compensation for the person’s expenditureorliabilityasmaybeagreeduponor,indefaultofagreement,asshallbedeterminedbyarbitrationinaccordancewith the provisions of the Arbitration Act 1908.
232 Application of Act (other than Part 9) to other entities
- (1)
- OntherecommendationoftheMinister,theGovernor-General maybyOrderinCouncilapplyanyprovisionorprovisionsof thisAct(otherthanaprovisionof Part9 )toanyentityspecified in the order (whether a State, part of a State, a territory for whoseinternationalrelationsaStateisresponsible,apolitical union, an international organisation, or any other entity).
- (2)
- To the extent that the nature of the entity permits, an order may apply a provision to an entity so that it has all or any of the following effects:
- (a)
- it applies to persons who are citizens or subjects of, or domiciled or resident in, the entity as it applies to personswhoarecitizensorsubjectsof,ordomiciledor resident in, New Zealand:
- (b)
- it applies to bodies incorporated under the law of the entityasitappliestobodiesincorporatedunderthelaw of New Zealand:
- (c)
- it applies to works first published in the entity as it applies to works first published in New Zealand:
- (d)
- itappliestocommunicationworkscommunicatedfrom any convention country as it applies to communication works communicated from New Zealand.
- (3)
- An order—
- (a)
- may apply a provision unconditionally, or subject to conditions, modifications, or both; and
- (b)
- mayapplyaprovisiongenerally,orinrelationtoworks or cases of a particular class or classes.
- (4)
- TheMinistermustnotrecommendthemakingofanorderapplying any provision of this Act to any entity unless satisfied that—
- (a)
- the entity is a convention country; or
- (b)
- provisionisorwillbemadeunderthelawoforapplicable to the entity giving reciprocal protection to copyright owners in respect of works generally or (as the case requires) works or cases of the class or classes to which the order applies that provision of this Act.
- (5)
- IftheGovernmentofaStateisresponsiblefortheinternational relations of 1 or more territories, an order may apply a provision to—
- (a)
- both the State and the territory (or 1 or more of the territories) concerned; or
- (b)
- just the State; or
- (c)
- just the territory (or 1 or more of the territories) concerned.
- (6)
- If—
- (a)
- an unpublished work is of unknown authorship, but there are reasonable grounds tosuppose that theauthor wasatthematerialtimeacitizenorsubjectof,ordomiciled or resident in, an entity other than New Zealand; and
- (b)
- an order under this section has applied a provision of this Act to that entity so that it applies to persons who arecitizensorsubjectsoftheentity,oraredomiciledor
resident there, as it applies to persons who are citizens orsubjectsof,ordomiciledorresidentin,NewZealand; and
- (c)
- a person is authorised under the law of or applicable to theentitytorepresenttheauthor,orprotectandenforce the rights of the author in relation to the work,—
the authorised person must be treated as if he or she were the author of the work for the purposes of the provision. Section232: substituted,on 14October1999,bysection3(1) oftheCopyright
Amendment Act 1999 (1999 No 124).
Section232(2)(d): substituted,on31October2008,bysection95oftheCopy right (New Technologies) Amendment Act 2008 (2008 No 27).
233 Denial of copyright to persons connected with countries not giving adequate protection to New Zealand works
- (1)
- Whenever it appears to the Governor-General that the law of a country, other than a convention country, fails to give adequate protection to copyright in New Zealand works, or to 1 or more classes of such works, the Governor-General may by Order in Council make provision in accordance with this section restricting the rights conferred by this Act in relation to that country.
- (2)
- An Order in Council made under this section shall designate the country concerned and provide that, for the purposes specified in the order, works first published after a date specified intheorder shallnot be treatedasqualifyingforcopyright by virtue of such publication if at that time the authors are—
- (a)
- citizens or subjects of that country (not domiciled or resident in New Zealand); or
- (b)
- bodies incorporated under the law of that country;— and the order may make such provision for all purposes of this Actorforsuchpurposesasarespecifiedintheorder,and either generally or in relation to such classes of cases as are specified in the order, having regard to the nature and extent of the failure referred to in subsection (1).
- (3)
- An Order in Council under this section may be so made as to apply generally to a country, or to any territories for whose international relations the Government of that country is re
sponsible, or to the country exclusive of all or any such territories.
(4) In this section,— NewZealandworksmeansworksofwhichtheauthorwasat the material time a person to whom section 18 applied works means literary, dramatic, musical, and artistic works,
sound recordings, and films. Compare: 1962 No 33 s 51; Copyright Act 1968 s 185 (Aust); Copyright, Designs and Patents Act 1988 s 160 (UK)
234 Regulations The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
- (a)
- prescribing a body as a judicial body for the purposes of this Act:
- (b)
- prescribing classes of libraries for the purposes of sec tion 50:
- (c)
- prescribinginstitutionsforthepurposesof section117 :
- (d)
- prescribingbodiesforthepurposesofsection69 orsec tion72 or section89 or section90 or section185 or sec tion 190 or section 191:
- (e)
- prescribingclassesofcommunicationworksforthepur poses of section 90 or section 191:
(ea) prescribingtheformofanoticeofinfringementforthe purposes of section 92D:
- (f)
- prescribing the form in which a notice is to be given under section 136(1):
- (g)
- prescribing the particulars to be contained in a notice given under section 136(1):
- (h)
- requiringapersongivinganoticeunder section136(1) , either at the time of giving the notice or subsequently, to furnish evidence in support of the claim that an item is a work in which the person owns the copyright:
- (i)
- requiring—
- (i)
- a person giving a notice under section 136(1), either at the time of giving the notice or subsequently; or
- (ii)
- a person to whom an item is to be or has been
released from detention under section 140(1)— to give security or an indemnity, or both, to such per-sons,ofsuchamount,andonsuchtermsandconditions asmaybedeterminedbythechiefexecutiveoftheNew Zealand Customs Service:
- (j)
- providingforexceptionstoanyrequirementtogivesecurityoranindemnityimposedbyanyregulationsmade under paragraph (i):
- (k)
- providingforthedispositionofanysecuritygivenunder any regulations made under paragraph (i):
- (l)
- providingfortheforfeituretotheclaimant,byconsent, of an item detained under section 140(1):
- (m)
- prescribing a fee for the purposes of section 144(2)(c):
- (n)
- imposingrequirementsinrespectoflicensingbodiesor any specified class or classes of licensing body or any specified licensing body, in relation to all or any of the following matters:
- (i)
- the contents of the constitution or other form of rules of the licensing body or bodies:
- (ii)
- the representation of copyright owners in the management of the licensing body or bodies:
(iii) thecollection,holding,anddistributionofmoney by the licensing body or bodies: - (iv)
- thedisclosureofthefinancialaffairsofthelicensing body or bodies:
- (v)
- access to, and disclosure of, records held by the licensing body or bodies:
- (vi)
- any other matter relating to the conduct or the operation of the licensing body or bodies:
- (o)
- authorising,subjecttosuchconditionsasmaybespecifiedintheregulations,therentaltothepublicofcopies of—
- (i)
- any specified class or classes of computer programs; or
- (ii)
- any specified class or classes of sound recordings; or
(iii) any film or specified class or classes of films,— withouttheconsentoftheownerofthecopyrightinthe work:
- (p)
- regulatingthemaking,importation,sale,hire,oruseof decoding equipment:
- (q)
- prescribing offences in respect of the contravention of or non-compliance with any provision of any regulations made under paragraph (p), and prescribing fines, not exceeding $5,000, that may, on summary conviction, be imposed in respect of any such offences:
- (r)
- providing for such matters as are contemplated by or necessary for giving full effect to this Act and for its due administration.
Compare: 1962 No 33 ss 29(4), (5), 66
Section 234(e): amended, on 31 October 2008, by section 96(1) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section 234(ea): inserted, on 31 October 2008, by section 96(2) of the Copy right (New Technologies) Amendment Act 2008 (2008 No 27).
Section234(i): amended,on1October1996,bysection289(1)oftheCustoms and Excise Act 1996 (1996 No 27).
Transitional provisions and savings
235 Transitional provisions and savings The transitional provisionsinSchedule 1shallhaveeffect for the purposes of this Act. Compare: 1962 No 33 s 68(1)
Schedule 1 s 235 Transitional provisions and savings 1 Interpretation
(1) In this schedule, unless the context otherwise requires,— the 1913 Act means the Copyright Act 1913 the 1962 Act means the Copyright Act 1962 the 1985 Amendment means the Copyright Amendment Act
1985
the new copyright provisions means the provisions of this Act work means,—
- (a)
- inrelationtothe1913Act,anythingrecognisedbythat Act as a subject of copyright; and
- (b)
- inrelationtothe1962Act,anythingrecognisedbythat Act as a subject of copyright.
- (2)
- Referencesinthisscheduletocommencement,withoutmore, are to the date on which the new copyright provisions come into force.
- (3)
- Forthepurposesofthisschedule,aworkofwhichthemaking extendedoveraperiodshallbetakentohavebeenmadewhen its making was completed.
- (4)
- Unless the context otherwise requires, provisions of the 1913 Act or the 1962 Act referred to in this schedule shall be taken as continuing in force for the purposes of this schedule, notwithstanding the repeal of the 1913 Act and the 1962 Act. Compare: 1962No33Schedule1cl47(2);Copyright,DesignsandPatentsAct
1988 Schedule 1 paras 1, 2(1) (UK)
2 Continuity of the law
- (1)
- A reference in an enactment, instrument, or other document to copyright that, apart from this Act, would be construed as referringtocopyrightunderthe1962Actoranycorresponding earlierenactment,shallbeconstrued,sofarasmayberequired for continuing its effect, as being, or as the case may require including, a reference to copyright under this Act.
- (2)
- A reference in an enactment, instrument, or other document to a work in which copyright exists that, apart from this Act, would be construed as referring to a work in which copyright
exists under the 1962 Act or any corresponding earlier enactment,shallbeconstrued,sofarasmayberequiredforcontinuing itseffect,asbeing,orasthecase mayrequireincluding,a reference to a work in which copyright exists underthis Act.
- (3)
- Express or implied references in this Act or any other enactment, instrument, or document to any of the new copyright provisions shall, so far as the context permits, be construed asincluding,inrelationtotimes,circumstances,andpurposes before commencement, a reference to corresponding earlier provisions.
- (4)
- An express or implied reference in an instrument or other document to a provision repealed by this Act shall be con-strued,sofarasmayberequiredforcontinuingitseffect, asa reference to the corresponding provision of this Act.
- (5)
- Theprovisionsofthisclausehaveeffectsubjecttoanyspecific transitional and savings provision and to any express amendment made by this Act. Compare: 1962 No 33 Schedule 1 cl 46(1)(a), (b); Copyright, Designs and
Patents Act 1988 Schedule 1 para 4(2), (4)–(6) (UK)
Copyright under new copyright provisions in works in which copyright exists at commencement
- (1)
- Copyright exists under the new copyright provisions in any work in which copyright existed immediately before commencement.
- (2)
- For the purposes of subclause (1), a work in which copyright existedimmediatelybeforecommencementincludesaworkin which a right was conferred by section 32 of the 1913 Act in substitution for a right existing immediately before the commencement of the 1913 Act.
- (3)
- Wherecopyrightexistsunderthenewcopyrightprovisionsin a work in which copyright existed immediately before commencement, the copyright in that work under the new provisions is subject to any modifications made by the provisions of this schedule. Compare: 1962No33Schedule1cl38(2);Copyright,DesignsandPatentsAct
1988 Schedule 1 paras 2(2)(a), 5(1) (UK)
4 Application of new copyright provisions to works in which copyright exists at commencement
- (1)
- The new copyright provisions—
- (a)
- apply to any work in which copyright existed immediately before commencement; and
- (b)
- aredeemedtobesatisfied,sofarastheyrelatetoqualificationforcopyright,byeverywork inwhichcopyright existed immediately before commencement.
- (2)
- For the purposes of subclause (1), a work in which copyright existedimmediatelybeforecommencementincludesaworkin which a right was conferred by section 32 of the 1913 Act in substitution for a right existing immediately before the commencement of the 1913 Act.
- (3)
- Wherethenewcopyrightprovisionsapplytoaworkinwhich copyright existed immediately before commencement, the new copyright provisions are subject, in their application to thatwork,toanymodificationsmadebytheprovisionsofthis schedule. Compare: 1962 No 33 Schedule 1 cls 38(2), 47(1); Copyright, Designs and
Patents Act 1988 Schedule 1 paras 3, 35 (UK)
6 No copyright under new copyright provisions in certain works
- (1)
- No copyright exists, under the new copyright provisions, in the following works:
- (a)
- a film, within the meaning of this Act, made before 1 April 1963:
- (b)
- a broadcast made before 1 April 1963:
- (c)
- the typographical arrangement of a published edition made before 1 April 1963.
- (2)
- Section 28 does not confer copyright on a work that was, be fore 1 April 1963,made byanofficeroremployee of, or published by, an international organisation to which that section applies. Compare: 1962 No 33 Schedule 1 cls 14, 17, 20, 33; Copyright, Designs and
Patents Act 1988 Schedule 1 paras 7(1), 9 (UK)
Interpretation provisions
7 Meaning of author
Thequestionofauthorshipofaworkmadebeforecommencement shall be determined in accordance with—
- (a)
- clause 11(3)(b) in relation to a soundtrack associated with a cinematograph film within the meaning of the 1962 Act:
- (b)
- clause 12(1) in relation to a film made before 1 April 1963:
- (c)
- the new copyright provisions for the purposes of the rights conferred by Part 4:
- (d)
- the law in force at the time the work was made, for all
other works and purposes. Compare: Copyright, Designs and PatentsAct 1988 Schedule 1 para10 (UK)
8 Meaning of issue to the public
- (1)
- Subsections (2) and (3) of section 9 do not apply in relation to a copy of a computer program, sound recording, or film acquiredbyanypersonbeforecommencementforthepurpose of renting the copy to the public.
- (2)
- In subclause (1),—
film includesafilmthatwasanoriginaldramaticworkwithin the meaning of the 1913 Act sound recording includes a contrivance of the kind to which
section 25 of the 1913 Act applied. Compare:Copyright,DesignsandPatentsAct1988Schedule1paras 2(2)(b), 14(2) (UK)
9 Meaning of publication Section10(2) appliesonlywheretheconstructionofthebuilding began after commencement. Compare: Copyright, Designs and PatentsAct 1988 Schedule 1 para45 (UK)
10 Meaning of infringing copy For the purposes of section 12, the question of whether the makingofan object constitutedan infringement of copyright, or would have constituted an infringement of copyright had theobjectbeenmadeinNewZealand,shallbedetermined,—
- (a)
- inrelationtoanobjectmadeonorafter1April1963and before commencement, by reference to the provisions of the 1962 Act:
- (b)
- in relation to an object made before 1 April 1963, by
reference to the provisions of the 1913 Act. Compare: Copyright,DesignsandPatentsAct1988Schedule1para14(3)(UK)
Description of copyright
11 Soundtracks to be treated as sound recordings
- (1)
- In this clause,—
cinematograph film or film has the meaning that cinematograph film had in the 1962 Act sound recording has the meaning it has in this Act.
- (2)
- A soundtrack associated with a cinematograph film, being a soundtrack to which the 1962 Act applied before commencement, shall be treated for the purposes of the new copyright provisions not as part of the film, but as a sound recording.
- (3)
- The following provisions apply to a soundtrack treated as a sound recording under subclause (2):
- (a)
- copyrightexistsinthesoundrecordingonlyifcopyright existedinthefilmimmediatelybeforecommencement, and it continues to exist until copyright in the film expires:
- (b)
- the author and first owner of copyright in the film shall betreatedastheauthorandfirstownerofthecopyright in the sound recording:
- (c)
- anything done before commencement under or in relationtothecopyrightinthefilmcontinuestohaveeffect in relation to the sound recording.
Compare: Copyright, Designsand Patents Act1988 Schedule1 para 8 (UK)
12 Films
(1) The new copyright provisions have effect in relation to a film—
- (a)
- that was made before 1 April 1963; and
- (b)
- that was an original dramatic work within the meaning
of the 1913 Act— as if it were an original dramatic work within the meaning of thenew copyright provisions, exceptthatthepersonwhowas the author of the work for the purposes of the 1913 Act shall betakentobetheauthorforthepurposesofthenewcopyright provisions.
(2) Thenewcopyrightprovisionsinrelationtophotographsapply in relation to photographs forming part of a film—
- (a)
- that was made before 1 April 1963; and
- (b)
- that was an original dramatic work within the meaning of the 1913 Act.
Compare: 1962 No 33 Schedule 1 cls 15, 16; Copyright, Designs and Patents Act 1988 Schedule 1 para 7(2), (3) (UK)
Acts restricted by copyright
13 Certain dramatic or musical works published before 1 April 1914
- (1)
- Where—
- (a)
- a dramatic or musical work was published before 1 April 1914; and
- (b)
- the copyright that existed immediately before commencement (being the right conferred by section 32 of the 1913 Act in substitution for a right existing immediately before the commencement of the 1913 Act) did not include the sole right to perform the work in public,—
the acts restricted by the copyright under the new copyright provisions shall be treated as not including—
- (c)
- performing the work in public:
- (d)
- broadcasting the work or including it in a cable programme:
- (e)
- doing any of the above in relation to an adaptation of the work.
- (2)
- Where—
- (a)
- a dramatic or musical work was published before 1 April 1914; and
- (b)
- the copyright that existed immediately before commencement (being the right conferred by section 32 of the 1913 Act in substitution for a right existing immediately before the commencement of the 1913 Act) consisted only of the sole right to perform the work in public,—
the acts restricted by the copyright under the new copyright provisions shall be treated as consisting only of the acts of—
- (c)
- performing the work in public:
- (d)
- broadcasting the work or including it in a cable programme:
- (e)
- doing any of the above in relation to an adaptation of the work.
Compare: 1962 No 33 Schedule 1 cls 38, 40; Copyright, Designs and Patents Act 1988 Schedule 1 para 17 (UK)
Ownership of copyright
14 First ownership
The question of first ownership of copyright in a work made beforecommencementshallbedeterminedinaccordancewith the law in force at the time the work was made. Compare: Copyright,DesignsandPatentsAct1988Schedule1para11(1)(UK)
15 Certain literary works made before 1 April 1963
Where a literary work—
- (a)
- was made before 1 April 1963; and
- (b)
- wasmadeinthecourseoftheauthor’semployment;— the ownership of copyright in the work, under section 8(1)(b) of the 1913 Act, by the person by whom the author was employed shall be subject to a right in the author to restrain the publicationoftheworkotherwisethanaspartofanewspaper,
magazine, or similar periodical (being the right referred to in paragraph (b) of theproviso to section 8(1) of the 1913 Act). Compare: 1962 No 33 Schedule 1 cl 7(2)
16 Certain literary works published before 1 April 1914
Where a literary work—
- (a)
- was published before 1 April 1914; and
- (b)
- consists of an essay, article, or portion forming part of andfirstpublishedinareview,magazine,orotherperiodical or work of a like nature,—
anycopyrightinthatworkunderthenewcopyrightprovisions issubjecttotherightoftheauthortopublishtheessay,article, orportioninaseparateformattheendoftheperiodof28years from its first publication in a review, magazine, or other periodical or work of a like nature (being the right referred to in section 18 of the Copyright Act 1842 (UK)). Compare: 1962 No 33 Schedule 1 cl 41; Copyright, Designs and Patents Act
1988 Schedule 1 para 18 (UK)
Duration of copyright
17 Duration of copyright in works generally
(1) In this clause,—
dramaticwork includesafilmofthekindtowhichthedefinition ofdramaticworkinsection2(1)ofthe1913Actapplied generated by computer, in relation to a work, means that the workis generatedbycomputer incircumstances such that
there is no human author of the work sound recording includes a contrivance of the kind to which section 25 of the 1913 Act applied.
- (2)
- In relation to—
- (a)
- a literary, dramatic, musical, or artistic work that was generated by computer before commencement, section 22(2) applies; and
- (b)
- a literary, dramatic, musical, or artistic work (other thanaphotograph)ofjointauthorshippublishedbefore 1 April 1963, the period of the copyright is the longer of the periods of—
- (i)
- thelifeoftheauthorwhodiedfirstandatermof 50 years after his or her death; and
- (ii)
- the life of the author who died last; and
- (c)
- aliterary,dramatic,musical,orartisticwork(otherthan a photograph) of joint authorship made before commencementbutnotpublishedbefore1April1963, sec tion 22(6) applies; and
- (d)
- a work of unknown authorship, being a literary, dramatic, musical, or artistic work (other than a photograph),—
- (i)
- if the work was published before commence ment, subsections (3) to (5) of section 22 apply; and
- (ii)
- if the work was unpublished before commencement,copyrightexistsuntiltheendoftheperiod of 50 years from the end of the calendar year in which the new copyright provisions come into force or, if during that period the work is first made available to the public within the mean ing of subsection (4) of section 22, the date on which copyright expires under subsection (3) of that section; and
- (e)
- a literary, dramatic, musical, or artistic work made before commencement, other than a work to which para graphs (a) to (d) or clause 18 or clause 19 applies, sec tion 22(1) applies.
- (3)
- If,inanycasetowhichsubclause(2)(d)(ii)applies,theidentity of the author becomes known before the date on which the copyright would otherwise have expired, copyrightexpires in accordance with section 22(1).
- (4)
- In relation to—
- (a)
- asoundrecordingmadebeforecommencement, section 23(1) applies; and
- (b)
- a cinematograph film, within the meaning of the 1962 Act,madeonorafter1April1963andbeforethecom mencement, section 23(1) applies; and
- (c)
- a broadcast made—
- (i)
- on or after 1 April 1963 and before commence ment, section 24(1) applies:
- (ii)
- before 1 April 1963, section 24(2) applies as if such a broadcast had not been made; and
- (d)
- thetypographicalarrangementofanypublishededition made on or after 1 April 1963 and before commence ment, section 25 applies; and
- (e)
- a work made by or under the direction or control of the Crown before commencement (other than a work towhich section27 applies), section 26(3) applies; and
- (f)
- a work that was, on or after 1 April 1963 and before commencement, made by an officer or employee of, or published by, an international organisation to which section 28 applies, section 28(2) applies.
Compare: 1962 No 33 Schedule 1 cl 11; Copyright, Designs and Patents Act 1988 Schedule 1 paras 9, 12(3), (6) (UK)
18 Duration of copyright in certain works made on or after 1 April 1963 and before commencement
(1) In relation to a literary, dramatic, musical, or artistic work (other than a photograph)—
- (a)
- made on or after 1 April 1963 and before commencement; and
- (b)
- the author of which died before commencement; and
- (c)
- that was not, after the death of the author and before commencement, published or performed in public or includedinabroadcast,orofferedforsaletothepublic on a record,—
copyright exists until the end of the period of 75 years from the end of the calendar year in which the author died.
(2) In relation to a literary, dramatic, musical, or artistic work (other than a photograph)—
- (a)
- made on or after 1 April 1963 and before commencement; and
- (b)
- the author of which died before commencement; and
- (c)
- that was, after the death of the author and before commencement, published or performed in public or included in a broadcast, or offered for sale to the public on a record,—
copyrightexistsuntiltheexpiryoftheshorterofthefollowing periods:
- (d)
- 50 years from the end of the calendar year in which an act referred to in paragraph (c) was first done:
- (e)
- 75yearsfromtheendofthecalendaryearinwhichthe
author died. Compare: 1962 No 33 s 8(1)(b)
19 Duration of copyright in certain works made before 1 April 1963
In relation to a literary, dramatic, or musical work or an engraving—
- (a)
- made before 1 April 1963; and
- (b)
- the author of which died before 1 April 1963; and
- (c)
- in which copyright existed immediately before the death of the author or, where the work was of joint authorship, at or before the death of the author who died last; and
- (d)
- beingaliterary,dramatic,ormusicalworkoranengraving that was published, or being a dramatic or musical work that was performed in public, or being a lecture thatwasdeliveredinpublicafterthedeathoftheauthor and before 1 April 1963,—
copyrightexistsuntiltheendoftheperiodof50yearsfromthe endoftheyearthatincludestheearliestoccasiononwhichthe work,—
- (e)
- beingaliterary,dramatic,ormusicalworkoranengraving, was published; or
- (f)
- being a dramatic or musical work, was performed in public; or
- (g)
- being a lecture, was delivered in public. Compare: 1962 No 33 Schedule 1 cl 6
Crown copyright
20 Crown copyright
Theprovisionsof section26 applytoaworkmadebeforecommencement if—
- (a)
- section52ofthe1962Actappliedtotheworkimmediately before commencement; and
- (b)
- the work is not one to which section 27 applies. Compare: Copyright, Designs and PatentsAct 1988 Schedule 1 para40 (UK)
Infringement of copyright
| 21 | Acts done before commencement |
| The provisions of the 1962 Act that specify acts constituting infringementsofcopyrightcontinuetoapplyinrelationtoacts done before commencement. |
| Compare: Copyright,DesignsandPatentsAct1988Schedule1para14(1)(UK) |
| 22 | Acts done after commencement |
| The provisions of this Act that specify acts constituting infringements of copyright apply only in relation to acts done after commencement. |
| Compare: Copyright,DesignsandPatentsAct1988Schedule1para14(1)(UK) |
| 23 (1) (2) | Infringement by issue of copies to public Where a person gave the notice required under the proviso to section6ofthe1913Actbeforetherepealofthatsection, that proviso and section 22(1) of the 1913 Act shall, in relation to copies of the relevant work made by that person after commencement, have effect as if that proviso and section 22(1) had been re-enacted in this Act as a proviso to section 31. Forthepurposesoftheoperationoftheprovisotosection6of the 1913 Act,— (a) any regulations made before the repeal of that section shall have effect as if they had been made under this Act; and (b) the power of the Governor-General in Council to make further regulations under that section shall apply as if the proviso had been re-enacted in this Act as a proviso to section 31. |
| Compare: 1962 No 33 Schedule 1 cl 10 |
| 24 | Importing infringing copy Forthepurposesofsection35,ifapersonknowsorhasreason to believe that an object made before commencement and imported by that person into New Zealand after commencement would have been an infringing copy if the question had fallen to be determined under the provisions of the 1962 Act or, as the case may be, the 1913 Act, that person shall be deemed to |
knowortohavereasontobelievethattheobjectisaninfringing copy under this Act. Compare: 1962 No 33 Schedule 1 cls 8, 21
Acts permitted in relation to copyright works
25 Incidental copying of copyright work Where the acts described in section 41(1)(b) or (c) are done after commencement, it shall be assumed that all the provisions of section 41 were in force at all material times. Compare: Copyright,DesignsandPatentsAct1988Schedule1para14(4)(UK)
26 Acts permitted on assumptions as to expiry of copyright or death of author in relation to anonymous or pseudonymous works Section 67(1)(b)(ii) applies—
- (a)
- to a work of unknown authorship that was unpublished before commencement, being a literary, dramatic, musical, or artistic work (other than a photograph), only after the end of the period of 50 years from the end of thecalendaryearinwhichthenewcopyrightprovisions come into force; and
- (b)
- to a work referred to in clause 17, if the work is one to
which, under that clause, a section of this Act applies. Compare: Copyright,DesignsandPatentsAct1988Schedule1para15(3)(UK)
27 Representationofcertainartisticworksonpublicdisplay Where the acts described insection 73(3)are doneafter com mencement, it shall be assumed that all the provisions of section 73 were in force at all material times. Compare: Copyright,DesignsandPatentsAct1988Schedule1para14(4)(UK)
Special exceptions from protection of artisticworks that have been applied industrially
28 Artistic works made before 1 April 1963
- (1)
- No copyright exists in an artistic work that—
- (a)
- was made before 1 April 1963; and
- (b)
- at the time when the work was made, constituted a designcapableofregistrationunderthe DesignsAct1953 or under the enactments repealed by that Act; and
- (c)
- hasbeenusedasamodelorpatterntobemultipliedby an industrial process or is intended to be so used.
- (2)
- Forthepurposesofsubclause(1)(c),adesignshallbedeemed to have been used, or to be intended to be used, as a model or pattern to be multiplied by any industrial process—
- (a)
- when the design is copied or is intended to be copied on more than 50 single objects, unless all the objects in which the design is copied or intended to be copied together form only a single set of articles as defined in section 2(1) of the Designs Act 1953; or
- (b)
- when the design is applied to, or is intended to be applied to,—
- (i)
- printed paper hangings; or
- (ii)
- carpets,floorcloths,oroilcloths,manufacturedor sold in lengths or pieces; or
(iii) textile-piece goods, or textile goods manufactured or sold in lengths or pieces; or
(iv) lace, not made by hand.
Compare: 1962 No 33 Schedule 1 cl 9; Copyright, Designs and Patents Act 1988 Schedule 1 para 6 (UK)
29 Literaryandartisticworksmadeonorafter1April1963
- (1)
- Nothing in section 74(1) shall apply to or affect—
- (a)
- the settlement of any action or claim made before the commencement of the 1985 Amendment; or
- (b)
- any proceedings completed before the commencement of the 1985 Amendment; or
- (c)
- any proceedings instituted or commenced before the commencement of the 1985 Amendment in which the trialofthesubstantivemattersinissuehadcommenced on or before that commencement.
- (2)
- Where,atcommencement,acopyofaliteraryorartisticwork exists,andthemakingofthatcopyisexcludedby section74(2) from being authorised by section 74(1), that copy is not an infringing object for the purposes of this Act.
- (3)
- Where, at commencement, a copy of an artistic work exists, andthemakingofthatcopyisexcludedby section75(3) from being authorised by section 75(1), that copy is not an infringing object for the purposes of this Act.
- (4)
- Where—
- (a)
- anobjectorreproductionmadepursuanttosection20B of the 1962 Act exists at commencement; and
- (b)
- that object is a copy in 3 dimensions of—
- (i)
- a work of artistic craftsmanship; or
- (ii)
- a sculpture that is not a cast or pattern for an objectthathasaprimarilyutilitarianfunction;or
(iii) a work of architecture, being a building or a
model for a building;— andthatreproductionisareproductionin2dimensions reasonably required for the making of the object,—
thatobjectorcopyisnotaninfringingobjectforthepurposes of this Act. Compare: 1985 No 134 s 4(3)
30 Models made before the commencement of the 1985 Amendment
Copyright does not exist by virtue of any amendment made to the 1962 Act by the 1985 Amendment in any model made before the commencement of the 1985 Amendment. Compare: 1985 No 134 s 10
31 Reconstruction of buildings
In section 78, the reference to the owner of the copyright in the drawings or plans is, in relation to buildings constructed before commencement, to the person who at the time of the construction was the owner of the copyright in the drawings or plans under the 1962 Act, the 1913 Act, or any enactment repealed by the 1913 Act. Compare: 1962No33Schedule1cl23(2);Copyright,DesignsandPatentsAct
1988 Schedule 1 para 14(7) (UK)
32 Incidental recording for purposes of broadcast or cable programme
Section 85 does not apply where the authority to broadcast a work or include it in a cable programme was given before 1 April 1963. Compare: 1962 No 33 Schedule 1 cl 22
Moral rights
33 Moral rights
- (1)
- No act done before commencement is actionable under any provision of Part 4.
- (2)
- Section 62 of the 1962 Act continues to apply in relation to actsdoneonorafter1April1963andbeforecommencement. Compare: 1962 No 33 Schedule 1 cl 37; Copyright, Designs and Patents Act
1988 Schedule 1 para 22 (UK)
34 Application of moral rights
- (1)
- Subject to subclause (5), the following provisions of this clause have effect in relation to—
- (a)
- the rights conferred by section 94; and
- (b)
- the rights conferred by section 98.
- (2)
- The rights described in subclause (1) do not apply—
- (a)
- in relation to a literary, dramatic, musical, or artistic work of which the author died before commencement; or
- (b)
- in relation to a film made before commencement.
- (3)
- The rights described in subclause (1) in relation to a literary, dramatic, musical, or artistic work made before commencement do not apply,—
- (a)
- where copyright first vested in the author, to anything that by virtue of an assignment of copyright made or licence granted before commencement may be done without infringing copyright; or
- (b)
- where copyright first vested in a person other than the author, to anything done by or with the licence of the copyright owner.
- (4)
- Therightsdescribedinsubclause(1)donotapplytoanything done in relation to a record made in pursuance of sections 22 and 23 of the 1962 Act.
- (5)
- The rights conferred by section 94 do not apply in respect of any work in which, before commencement, the copyright vestedintheemployeroftheauthorordirector,unlesstheauthorordirectorhaspreviouslybeenidentifiedassuchinoron published copies of the work.
- (6)
- In this clause, the term dramatic work includes a film of the kind to which the definition of dramatic work in section 2(1) of the 1913 Act applied. Compare: Copyright, Designs and PatentsAct 1988 Schedule 1 para23 (UK)
35 Right to privacy of certain photographs and films
The right conferred by section 105 does not apply to photo graphs taken or films made before commencement. Compare: Copyright, Designs and PatentsAct 1988 Schedule 1 para24 (UK)
Dealing with rights in copyright works
36 Licences
Section 111(2) does not apply in relation to an exclusive li cence granted before commencement. Compare: Copyright, Designs and PatentsAct 1988 Schedule 1 para29 (UK)
37 Documents or events before commencement
(1) Wherecopyrightexistsinaworkunderthenewcopyrightprovisions, any document that—
- (a)
- was made before commencement; and
- (b)
- had any operation affecting the title to copyright in the work under the 1913 Act, or would have had such an operation if the 1913 Act had continued in force; or
- (c)
- had any operation affecting the title to copyright in the work under the 1962 Act or would have had such an operation if the 1962 Act had continued in force,—
shall, subject to subclause (2), have the corresponding operationinrelationtocopyrightinthework underthenewcopyright provisions.
- (2)
- Iftheoperationofanysuchdocumentwasorwouldhavebeen limitedtoaperiodspecifiedinthedocument,itshallnothave anyoperationinrelationtothecopyrightunderthenewcopyrightprovisions,exceptinsofarasthatperiodextendsbeyond commencement.
- (3)
- Forthepurposesoftheoperationofadocumentinaccordance with subclause (1),—
- (a)
- expressions used in the document shall be construed in accordance with their effect immediately before commencement, notwithstanding that a different meaning is assigned to them for the purposes of this Act; and
- (b)
- section 116 shall not apply in respect of any agreement made before 1 April 1963.
- (4)
- Wherecopyrightexistsinaworkunderthenewcopyrightprovisions, any event that—
- (a)
- occurred before commencement; and
- (b)
- had any operation affecting the title to copyright in the work under the 1913 Act, or would have had such an operation if the 1913 Act had continued in force; or
- (c)
- had any operation affecting the title to copyright in the work under the 1962 Act or would have had such an operation if the 1962 Act had continued in force,—
shallhavethecorrespondingoperationinrelationtocopyright in the work under the new copyright provisions.
(5) In this clause,— copyright in the work under the 1913 Act includes, in relation to a film, any copyright under the 1913 Act in the film in so far as it constituted a dramatic work for the purposes of
the 1913 Act and any copyright under the 1913 Act in photographs forming part of the film operation affecting the title means any operation affecting
the ownership of that copyright, or creating, transferring, or terminatinganinterest,right,orlicenceinrespectofthatcopyright. Compare: 1962No 33Schedule1cl36(1),(2),(4)(b), (5); Copyright, Designs
and Patents Act 1988 Schedule 1 paras 25, 26(1) (UK)
38 Certain assignments or licences on or after 1 April 1914 and before 1 April 1963
- (1)
- Whereadocumenttowhich clause37(1) appliesisanassignment made or a licence granted—
- (a)
- on or after 1 April 1914 and before 1 April 1963; and
- (b)
- bytheauthorofaliterary,dramatic,musical,orartistic work,wheretheauthoristhefirstownerofcopyrightin the work; and
- (c)
- otherwise than by will,— the assignment or licence shall not be operative to vest in the assigneeorlicenseeanyrightswithrespecttocopyrightinthe work beyond the expiration of 25 years from the death of the author.
- (2)
- Aftercommencementandduringthelifeoftheauthor,theauthor may assign the reversionary interest in the copyright expectantontheterminationoftheperiodspecifiedinsubclause (1).
- (3)
- Iftheauthordoesnotmakeanassignmentaspermittedbysubclause (2), the reversionary interest in the copyright expectant on the termination of the period specified in subclause (1) shall, on the author’s death, devolve on his or her legal personal representatives as part of his or her estate.
- (4)
- Nothing in this clause affects—
- (a)
- an assignment of the reversionary interest by a person to whom it has been assigned; or
- (b)
- an assignment of the reversionary interest after the death of the author by his or her personal representatives or any person becoming entitled to it; or
- (c)
- any assignment of the copyright after the reversionary interest has fallen in.
- (5)
- Nothing in this clause applies to the assignment of the copyrightinacollectiveworkoralicencetopublishaworkorpart of a work as part of a collective work.
- (6)
- In subclause (5), the term collective work means—
- (a)
- any encyclopaedia, dictionary, yearbook, or similar work:
- (b)
- a newspaper, review, magazine, or similar periodical:
- (c)
- any work written in distinct parts by different authors, orinwhichworksorpartsofworksofdifferentauthors are incorporated.
Compare: 1962No33Schedule1cl36(3);Copyright,DesignsandPatentsAct 1988 Schedule 1 para 27 (UK)
39 Assignments or grants made before 1 April 1914
- (1)
- This clause applies where the author of a literary, dramatic, musical, or artistic work published before 1 April 1914 assignedorgranted,before1April1914,aninterestinthecopyright or performing right in the work for the full term of that right under the law in force before the 1913 Act (being such an assignment or grant as was mentioned in paragraph (a) of the proviso to section 32(1) of the 1913 Act).
- (2)
- If, before commencement, any thing was done in relation to the copyright in the work under paragraph (a) of the proviso tosection32(1)ofthe1913Act,thatthinghasacorresponding operation under the new copyright provisions.
- (3)
- Any right that, before commencement,—
- (a)
- was exercisable in relation to the work or copyright in itunderparagraph(a)oftheprovisotosection32(1)of the 1913 Act; or
- (b)
- would have been exercisable in relation to the work or copyrightinitunderparagraph(a)oftheprovisotosection 32(1) of the 1913 Act, if that provision had continued in force—
is exercisable in relation to the work or copyright in it under the new copyright provisions.
(4) If, in accordance with paragraph (a) of the proviso to section 32(1)ofthe1913Act,copyrightwouldhaverevertedtotheauthororhisorherpersonalrepresentativeson the datereferred to in that paragraph, and that date falls after commencement, then, on that date—
- (a)
- the copyright in the work shall revert to the author or his or her personal representatives, as the case may be; and
- (b)
- any interest of any other person in the copyright that exists on that date by virtue of any document made be
fore the commencement of the 1913 Act shall cease to exist. Compare: 1962 No 33 Schedule 1 cl 42; Copyright, Designs and Patents Act 1988 Schedule 1 para 28 (UK)
40 Copyright to pass under will with unpublished works
- (1)
- Section 115—
- (a)
- does not apply where the testator died before 1 April 1963; and
- (b)
- where the testator died on or after that date and before commencement, applies only in relation to an original document embodying a work.
- (2)
- In the case of an author who died before 1 April 1963, the ownership after the author’s death of a manuscript of the author, where such ownership has been acquired under a testamentary dispositionmade by the authorand the manuscriptis of a work that has not been published or performed in public, is prima facie proof of the copyright being with the owner of the manuscript. Compare: Copyright, Designs and PatentsAct 1988 Schedule 1 para30 (UK)
Remedies for infringement
41 Remedies for infringement
- (1)
- The following provisions apply in relation to an infringement of copyright:
- (a)
- in relation to an infringement of copyright committed after commencement, sections 120 to 122 apply:
- (b)
- in relation to an infringement of copyright committed on or after 1 April 1963 and before commencement, sections 24 and 25 of the 1962 Act and section 6(2) of the 1985 Amendment continue to apply:
- (c)
- in relation to an infringement of copyright committed before 1 April 1963, sections 9(1) and (2) and 10 to 13 of the 1913 Act continue to apply.
- (2)
- The following provisions apply in relation to the rights and remedies of an exclusive licensee:
- (a)
- sections 123 and 124 apply where sections 120 to 122 apply:
- (b)
- section 26 of the 1962 Act continues to apply where sections 24 and 25 of that Act continue to apply:
- (c)
- sections 123 and 124 of this Act and section 26 of the 1962 Act do not apply to a licence granted before 1 April 1963.
- (3)
- The following provisions apply in relation to presumptions:
- (a)
- sections 126 to 129 apply only in proceedings brought under this Act:
- (b)
- sections 27 and 27A of the 1962 Act continue to apply to proceedings brought under that Act:
- (c)
- section 9(3) of the 1913 Act continues to apply to proceedings brought under that Act.
- (4)
- Thefollowingprovisionsapplyinrelationtocriminalliability for making or dealing with infringing objects:
- (a)
- in relation to acts done after commencement, section 131 applies:
- (b)
- in relation to acts done before commencement, includingactsdonebefore1April1963,section28ofthe1962 Act continues to apply.
Compare: 1962 No 33 Schedule 1 cls 25–28; Copyright, Designs and Patents Act 1988 Schedule 1 paras 31–33 (UK)
Effect of notices given under section 22 orsection 29 of the Copyright Act 1962
42 Records of musical works
- (1)
- Where, before commencement, a person gave notice under section22(1)(b)ofthe1962Actofhisorherintentiontomake or import a record of a musical work, any making or importingoftherecordbythatpersonaftercommencementshallnot beaninfringementofanycopyrightinthemusicalworkifthe conditions set out in section 22 of the1962 Act are fulfilled.
- (2)
- The provisions of—
- (a)
- sections 22 and 23 of the 1962 Act; and
- (b)
- regulations 3(2) and 4 to 7 of the Copyright (Record Royalties) Regulations 1963—
thatareinforceimmediatelybeforecommencementshallcontinuetoapplyforthepurposeofcompletingorperfectingany matter in progress immediately before commencement. Compare: 1962 No 33 Schedule 1 cl 24; Copyright, Designs and Patents Act
1988 Schedule 1 para 21 (UK)
43 Notice may be given to chief executive of New Zealand Customs Service
- (1)
- Subjecttosubclause(2),where,beforecommencement,anotice was given in respect of a work under section 29 of the 1962Act,andthatnoticehadnotbeenwithdrawnandhadnot otherwiseceasedtohaveeffectbeforecommencement,thenoticeshallhaveeffectaftercommencementasifithadbeenacceptedunder section136 ,andsection136shallapplywithany necessary modifications.
- (2)
- The notice shall, upon commencement, cease to have any effect in respect of—
- (a)
- anyitemssoldinanothercountrybyorwiththeconsent of the owner of the copyright in that country; and
- (b)
- anyitemsintransittoacountryotherthanNewZealand. Compare: 1962 No 33 Schedule 1 cl 29
Schedule1clause43heading: amended,on1October1996,pursuanttosection 294(3) of the Customs and Excise Act 1996 (1996 No 27).
Archives Act 1957 (1957 No 13) (RS Vol 1, p 127)
Amendment(s) incorporated in the Act(s).
Enemy Property Act 1951 (1951 No 48) (RS Vol 6, p 317)
Amendment(s) incorporated in the Act(s).
Ministry of Agriculture and Fisheries Act 1953 (1953 No 7) (RS Vol 18, p 509)
Amendment(s) incorporated in the Act(s).
National Library Act 1965 (1965 No 136) (RS Vol 11, p 225)
Amendment(s) incorporated in the Act(s).
Public Works Act 1981 (1981 No 35)
Amendment(s) incorporated in the Act(s).
Survey Act 1986 (1986 No 123)
Amendment(s) incorporated in the Act(s).
Schedule 3 s 236(2) Enactments repealed Broadcasting Act 1989 (1989 No 25)
Amendment(s) incorporated in the Act(s).
Copyright Act 1962 (1962 No 33) Copyright Amendment Act 1967 (1967 No 65) Copyright Amendment Act 1971 (1971 No 91) Copyright Amendment Act 1985 (1985 No 134) Copyright Amendment Act 1986 (1986 No 81) Copyright Amendment Act 1989 (1989 No 112) Copyright Amendment Act 1990 (1990 No 71) Decimal Currency Act 1964 (1964 No 27)
Amendment(s) incorporated in the Act(s).
Summary Proceedings Act 1957 (1957 No 87)
Amendment(s) incorporated in the Act(s).
Schedule 4 s 236(3) Regulations revoked Copyright Amending Regulations 1946 (SR 1946/142) Copyright Amending Regulations 1955 (SR 1955/45) Copyright (Customs) Regulations 1963 (SR 1963/85)
Copyright(InternationalConventions)Order1964(SR1964/53) Copyright (International Conventions) Order 1964, Amendment No 1 (SR 1979/64)
Copyright (Record Royalties) Regulations 1963 (SR 1963/84) Copyright Regulations 1913 (Gazette Vol I 1914, p 1325) Works the Importation of which is prohibited under the
Copyright Act 1913 (Gazette Vol I 1925, p 16)